LIBRARY 

OF  THE 

UNIVERSITY  OF  CALIFORNIA. 

Class 


STUDIES  IN  CONSTITUTIONAL  LAW 


A  TREATISE 


ON 


AMERICAN  CITIZENSHIP 


BY 

JOHN  S.  WISE 

OF  THE  NEW  YORK  BAR 


EDWARD  THOMPSON  COMPANY 

NORTHPORT,  LONG  ISLAND,  N.  Y 

1906 


Copyright  1905 

by 
EDWARD  THOMPSON  COMPANY 


All  rights  reserved 


INTRODUCTORY. 

THIS  book  was  prepared  at  the  solicitation  of 
the  publishers,  but  in  obedience  to  a  long-cherished 
wish  to  see  the  discussion  of  the  origin,  nature,  and 
obligations  of  American  citizenship,  state  and  na- 
tional, reduced  to  compendious  form  in  one  volume. 
The  subject  is  not  only  one  concerning  which  the 
legal  profession  should  have  a  convenient  text-book, 
but  is  an  indispensable  part  of  the  education  of 
every  man  who  makes  pretension  to  a  fair  education 
and  knowledge  of  the  history  of  his  country. 

I  have,  I  may  say  without  vanity,  had  unusual 
need  for  the  study  of  all  these  questions,  for  as  I 
grew  up  they  were  the  great  points  of  difference 
between  our  people.  As  they  were  settled  one  by 
one,  I  studied  the  reason  and  argument  of  the  de- 
cision, and  later  in  life  questions  of  citizenship  and 
suffrage  have  been  involved  in  many  of  the  cases 
I  have  tried. 

It  is  not  believed  that  this  is  a  perfect  book,  nor 
is  it  doubted  that  in  time  it  will  be  supplanted  by 
another  or  others  dealing  more  ably  with  the  sub- 
jects discussed  and  grouping  them  more  conven- 
iently, but  for  the  present,  at  least,  it  is  hoped  that 
it  will  supply,  as  no  other  text-book  known  to  the 
author  does,  the  basis  for  special  lectures  on  this 
most  important  topic  in  our  law  schools,  and  a  con- 
venient key  for  references  to  the  active  members 
of  our  profession. 

iii 


166382 


INTRODUCTORY 


It  is  believed  that  in  it  will  be  found  every 
decision  of  the  Supreme  Court  upon  the  questions 
discussed. 

No  effort  has  been  made  to  pad  the  volume  with 
the  arguments  pro  and  con  upon  points  decided,  or 
to  cite  opinions  on  the  same  point,  distinguishing 
one  case  from  another. 

The  principles  decided  have  been  given  their  ap- 
propriate places.  The  discussions  concerning  why 
one  case  decided  did  not  fall  within  the  principle 
decided  by  another  case,  have  been  purposely 
omitted  as  tending  to  make  a  volume  of  case  law  as 
distinguished  from  one  of  legal  principles.  Such 
discussions  tend  to  befog  the  legal  principle  decided 
rather  than  make  it  plain,  and  to  weary  even  the 
professional  man.  They  must  be  encountered  when 
the  authorities  cited  are  examined. 

The  whole  object  of  the  author  has  been  attained 
if  he  has  succeeded  in  putting  the  origin,  nature, 
and  obligations  of  the  citizen  in  form  sufficiently 
attractive  to  enlist  a  more  widespread  understand- 
ing among  educated  Americans  of  their  rights  and 
obligations  as  American  citizens;  for  the  present 
ignorance  of  our  people  and  the  confusion  in  their 
apprehension  of  the  subject  would  be  something 
incredible  in  older  countries. 

In  the  hope  that  the  need  of  the  book  is  real,  and 
not  imaginary,  that  it  may  be  accepted  in  a  spirit  of 
charity,  and  that  some  one  better  equipped  may  soon 
arise  to  improve  upon  it,  it  is  respectfully  submitted 
to  the  profession  and  to  the  public. 

JOHN  S.  WISE. 

"New  York. 

iv 


TABLE  OF  CONTENTS. 

CHAPTER  I. 
OF  CITIZENSHIP  GENERALLY. 

PAGE 

Definition  of  Citizenship. . 2 

American  Citizenship  —  Its  Origin  and  Kinds 4 

State  Citizenship 5 

Citizenship  of  the  Northwest  Territory 13 

Citizenship  of  the  United  States 17 

Qualified  Citizenship  in  Territorial  and  Acquired  Possessions...  34 

Hawaii  —  Its  Government 37 

Porto    Rico 39 

Guam 42 

Philippine    Islands 42 

Citizenship  in  Our  Insular  Possessions 46 

CHAPTER  II. 
HOW  AMERICAN  CITIZENSHIP  MAY  BE  ACQUIRED. 

In  the  Nation: 

By  Birth    51 

By  Naturalization  53 

Length  of  Residence  Necessary 55 

In  a  State: 

By  Birth    61 

By  State  Enactments 61 

By  Federal  Enactments  62 

Outside  the  Nation  or  States 62 

Of  the  Persons  who  May  be  Citizens 63 

National  and  State  Citizenship  Not  Necessarily  Coexistent 66 

CHAPTER  III. 

OF  THE  OBLIGATIONS  AND  DUTIES  OF  THE  CITIZENS  TO 
THE  NATION  AND  THE  STATE. 

Allegiance    •  •  6ft 

Different  Kinds  of  Allegiance 69 

Formal  Compact  Not  Necessary  to  Create  Allegiance 69 

Of  Dual  Allegiance 70 

v 


VI  TABLE  OF  CONTENTS 


PAGE 

Of  Patriotism 73 

Of    Treason 74 

Of  Dual  Treason 80 

Elements  of  the  Offense     83 

CHAPTEE  IV. 

OF  THE   RIGHTS,  PRIVILEGES,  AND  IMMUNITIES  OF  THE 

CITIZEN. 

In    General     92 

Source  of  American  Plan  of  Government  and  Rights  of  Citi- 
zenship    93 

Rights  of  Citizens  of  the  States 98 

State  Bills  of   Rights 100 

National  Declaration  of  Independence 104 

The  Federal  Constitution 106 

Rights,  Privileges,   and  Immunities  Granted  or  Guaranteed  to 

the  Citizen  of  the  United  States Ill 

Taxation  of  the  Citizen 152 

Of  the  Immunity  of  the  Citizen  from  Arrest,  While  Attending 
Congress,  and  in  Going  to  and  Returning  from  the  Same, 
and  from  Being  Questioned  in  any  other  Place  for  any 

Speech  or  Debate 153 

Of  the  Immunity  of  the  Citizen  from  State  Interference  with 
the  Regulation  of  Commerce  with  Foreign  Nations,  and 

amcug  the  Several  States  and  with  the  Indian  Tribes 154 

Right  of  the  Citizen  to  the  Writ  of  Habeas  Corpus 159 

Of  the  Immunity  of  the  Citizen  Against  Bills  of  Attainder  and 

Ex  Post  Facto  Laws 163 

Of  the  Immunity  of  the  Citizen  Against  State  Laws  Impairing 

the  Obligation  of  Contracts 165 

Of  the  Right  of  the  Citizens  of  Each  State  to  All  the  Privileges 

and  Immunities  of  Citizens  in  the  Several  States 167 

Of  the   Federal   Guarantee   of   Extradition    of    Fugitives   from 

Justice    174 

The  Guarantee  to  the  Citizen  that  Persons  Held  to  Service  or 
Labor  in  one  State  and  Escaping  to  another  Shall  Not  Be 
Discharged  Thereby  from  Such  Service  or  Labor  but  Shall 

Be  Delivered   up 178 

Of  the  Federal  Guarantee  to  the  Citizen  that  His  State  Shall 

Have  a  Republican  Form  of  Government 178 

The  Immunity  of  the  Citizen  Against  any  Law  of  Congress  Re- 
specting an  Establishment  of  Religion  or  Prohibiting  the 

free  Exercise  Thereof 185 

Of  the  Right  of  the  Citizen  to  Free  Speech 188 


TABLE  OF  CONTENTS 


Vll 


PAGE 

Of  the  Freedom  of  the  Press 189 

Rights  Guaranteed  by  Amendments  II  to  VIII,  XI,  and  XII...   190 

CHAPTEE  V. 

PRIVILEGES  AND  IMMUNITIES  UNDER  THE  WAR 
AMENDMENTS. 

The  Thirteenth  Amendment 192 

The  Fourteenth  Amendment 194 

Of  the  Regulation  of  Ordinary  Business  Pursuits  by  the 

States  211 

The  Right  to  Regulate  Woman's  Rights 214 

The  Right  to  Regulate  the  Practice  of  Professions 215 

Of  Suffrage 215 

Reduction  of  the  Representation  of  the  States  in  Congress 223 

The  Right  of  States  to  Regulate  State  Procedure  Especially 

Concerning  the  Summoning  and  Constitution  of  Juries ....  235 
Of  the  Power  of  the  State  to  Control  and  Regulate  the  Business 

of  Corporations  in  the  State 241 

The  Right  to  Control  the  Conduct  of  Individuals  and  Bodies  of 

Citizens  in  Public  Places 243 

Of  the  Power  of  the  State  to  Regulate  State  Taxation 246 

Of  the  Right  of  the  State  to  Control  State  Elections 249 

Due  Process  of  Law 249 

Of  the  Equal  Protection  of  the  Law 254 

The  Fifteenth  Amendment  257 

CHAPTER  VI. 
OF  THE  PROTECTION  OF  CITIZENS  ABROAD 261 

CHAPTER  VII. 

OF  EXPATRIATION,  ALIENS,  AND  WHO  MAY  NOT  BECOME 

CITIZENS. 

Expatriation   263 

Aliens    267 

Immigration  of  Chinese 275 


i 


A  TREATISE  ON  AMERICAN 
CITIZENSHIP. 

CHAPTER  I. 

OF  CITIZENSHIP  GENERALLY. 

T  is  not  proposed,  in  this  work,  to  cast  back  in  the    Chapter 
history  of  government,  to  the  ethnic  origin  of 
the  terms  citizen  and  citizenship,  or  to  institute  origin  and 

i  it  ft  n    nature    of 

any  comparisons  between  the  grade  or  quality  of 
citizenship  enjoyed  by  those  who  are  subject  to  the 
jurisdiction  of  the  United  States,  or  the  States  com- 
posing it,  and  that  possessed  by  citizens  of  other 
governments,  ancient  or  modern.  Such  researches 
and  comparisons,  however  interesting  they  might 
prove,  would  be  almost  endless,  and,  in  a  book  of  this 
character,  would  tend  to  divert  the  student  from  a 
study  of  the  origin  and  nature  of  American  citizen- 
ship, national  and  state,  without  shedding  any  prac- 
tical light  upon  the  real  question  to  which  the  volume 
is  addressed. 

We  shall  therefore  proceed  to  ascertain  the  origin 
and  define  the  nature  and  quality  of  citizenship  en- 
joyed by  individuals  who  are  subject  to  the  juris- 
diction of  the  United  States,  either  as  citizens  of  the 
United  States,  or  as  citizens  of  some  particular 
component  State,  Territory,  or  possession  of  the 

United  States. 

i 


CITIZENSHIP 


Definition  of  Citizenship. 


status  of          The  latest  approved  definition  of  the  term  citizen- 
the  citizen.  ship  .g  that  found  in  ^  Standard  Dictionary  (1898), 

which  describes  it  as  "the  status  of  a  citizen  with 
its  rights  and  privileges." 1  The  status  of  a  citizen 
implies  the  existence  of  — 

(1)  A  political  body  established  to  promote  the 
general  welfare  and  collective,  as  well  as  individual, 
rights  of  those  composing  it. 

(2)  Individuals  who  have  established,  or  sub- 
mitted themselves  to  the  dominion  of,  that  political 
body.2 

(3)  Such  benefit  from,  or  participation  in,  the 
administration  of  that  political  body  by  the  individ- 
uals composing  it,  that  they  may  be  designated  as 
citizens,  and  not  as  mere  subjects  of  a  despot  or  an 
absolute  monarch  under  whom  they  have  no  voice  in 
administration. 

The  same  authority  above  quoted  defines  a  citizen 
as  "a  member  of  a  nation  or  sovereign  state,  espe- 
cially a  republic;  one  who  owes  allegiance  to  a 
government  and  is  entitled  to  protection  from  it." 
That  definition  is  broad  enough  to  make  every  sub- 
ject a  citizen  of  the  government  to  which  he  owes 
allegiance,  and  from  which  he  receives  protection; 

*  See  also  Webster's  Dictionary ;  Century  Dictionary ;  6  Am.  and 
Eng.  Encyc.  of  Law  (2d  ed.)  15;  Abrigo  v.  State,  (1890)  29  Tex. 
App.  149. 

2  "  Citizens  are  the  members  of  the  political  community  to  which 
they  belong.  They  are  the  people  who  compose  the  community,  and 
who,  in  their  associated  capacity,  have  established  or  submitted  them- 
selves to  the  dominion  of  a  government  for  the  promotion  of  their 
general  welfare  and  the  protection  of  their  individual  as  well  as  their 
collective  rights."  U.  S.  v.  Cruikshank,  (1875)  92  U.  S.  542. 


CITIZENSHIP 


but  the  term  citizen,  as  it  is  commonly  understood, 
implies  membership  of  a  political  body  in  which  the 
individual  enjoys  popular  liberty  to  a  greater  or  less 
degree.3  It  does  not  necessarily  follow  from  this 
definition,  that  the  grade  or  quality  or  privileges  of 
citizenship  must  be  identical  in  all  citizens,  even  in 
republican  governments.  In  the  Eoman  govern- 
ment, a  citizen  might  or  might  not  be  invested  with 
all  the  civil  privileges  of  the  government.4  In  many 
cases  arising  under  our  system,  it  has  been  repeat- 
edly decided  that  the  bestowal  of  political  privileges 
upon  an  individual  is  not  essential  to  constitute  him 
a  citizen.5 

3  For  the  purpose  of  designating  by  a  title  tho  person  and  the 
relation  he  bears  to  the  nation,  "  the  words  '  subject,'  '  inhabitant,' 
and  '  citizen '  have  been  used,  and  the  choice  between  them  is  some- 
times made  to  depend  upon  the  form  of  the  government.  *  Citizen '  is 
now  more  commonly  employed,  however,  and  as  it  has  been  considered 
better  suited  to  the  description  of  one  living  under  a  republican  gov- 
ernment, it  was  adopted  by  nearly  all  of  the  States  upon  their  sepa- 
ration from  Great  Britain,  and  was  afterwards  adopted  in  the  Articles 
of  Confederation  and  in  the  Constitution  of  the  United  States." 
Minor  v.  Happersett,  (1874)  21  Wall.  (U.  S.)  162. 

"  The  word  is  never  used  of  the  people  in  a  monarchy,  since  it 
involves  an  idea  not  enjoyed  by  subjects,  to  wit:  the  inherent  right 
to  partake  in  the  government.  The  republics  of  the  Old  World  were 
cities,  and  the  word  citizen  has  been  usually  in  human  history  only 
applied  to  inhabitants  of  cities.  As,  however,  states  have  in  mod- 
ern times  arisen,  and  republics  have  been  established,  in  which  the 
word  subjects  could  not  be  properly  applied,  the  people  of  those 
republics  have  been  called  citizens,  for  the  simple  and  obvious  rea- 
son that  their  relation  to  the  state  was  such  as  was  the  relation  of 
citizens  to  the  city.  They  were  a  part  of  its  sovereignty  —  they 
were  entitled  to  its  privileges,  its  rights,  immunities  and  franchises. 
White  v.  Clements,  (1896)  39  Ga.  232. 

^Thomasson  v.  State,  (1860)  15  Ind.  449;  Amy  V.  Smith,  (1822) 
1  Litt.  (Ky.)  332. 

6  6  Am.  &  Eng.  Encyc.  of  Law,  15  and  cases  cited ;  Minor  V.  Hap- 
persett, (1874)  21  Wall.  (U.  S.)  162;  Lyons  v.  Cunningham,  (1884) 
66  Cal.  42;  Blanck  v.  Pausch,  (1885)  113  111.  60;  Laurent  v.  State, 
(1863)  1  Kan.  313;  Opinion  of  Justices,  44  Me.  507;  Pomeroy's 


CITIZENSHIP 


Ordinarily  the  term  citizen,  applied  to  the  indi- 
vidual unit  in  any  government,  implies  that  he  en- 
joys a  greater  degree  of  participation  in  the  affairs 
of  his  government  than  would  be  implied  if  he  were 
referred  to  as  a  subject. 

wSStrlu£1  In  a  constitutional  monarchy  like  Great  Britain, 
the  individual  units  composing  it  are  referred  to 
indifferently  as  citizens  or  as  subjects.  In  an  abso- 
lute monarchy  like  Bussia,  the  idea  of  subjection  to 
the  ruler  overshadows  that  of  citizenship,  and  the 
individual  subject  is  seldom  referred  to  as  a  citizen, 
except  in  diplomatic  intercourse  between  his  govern- 
ment and  other  nations. 

In  a  free  democracy  like  the  United  States,  where 
there  is  no  sovereign  and  no  subject,  the  units  com- 
posing the  political  body  are  properly  designated  as 
citizens.  This  subject  is  discussed  in  a  most  inter- 
esting way  by  the  Supreme  Court  of  the  United 
States  in  the  case  of  Minor  v.  Happersett.6 

American  Citizenship  —  Its  Origin  and  Kinds. 

«SoSai  In  the  seventeenth  and  eighteenth  centuries,  the 

British  government  planted  or  acquired  thirteen  dis- 
tinct colonies  on  the  continent  of  North  America, 
and  governed  them,  prior  to  July  4,  1776,  under 
the  system  of  English  laws  as  applied  by  the  co- 
lonial policy  of  Great  Britain,  with  George  III  as  a 
constitutional  monarch.  Each  of  these  colonies  had 

Municipal  Law,  pt.  11,  c.  2,  p.  425;  Dred  Scott  v.  Sandford,  (1856) 
19  How.  (U.  S.)  422;  U.  S.  v.  Morris,  (1903)  125  Fed.  Rep.  325; 
Dorsey  V.  Brigham,  (1898)  177  111.  258,  69  Am.  St.  Rep.  232 ;  Gougar 
v.  Timberlake,  (1897)  148  Ind.  41,  62  Am.  St.  Rep.  489. 

e  (1874)    21  Wall.   (U.  S.)    162;  see  also  The  Pizarro,  (1817)   2 
Wheat.  (U.  S.)  227. 


CITIZENSHIP  5 


been  founded  or  acquired  separately  and  at  a  differ-  chapter 
ent  time,  and  each  was  governed  under  its  own  dis-  ' 
tinct  charter  or  commission.  The  inhabitants  of  all 
the  colonies  were  British  citizens  or  subjects.  The 
several  local  governments,  under  which  the  colonies 
respectively  conducted  their  domestic  affairs,  were 
not  independent  political  societies,  of  which  they 
might  be  said  to  be  citizens.  While  they  were  in- 
habitants of  their  respective  colonies,  they  were  citi- 
zens of  Great  Britain,  and  their  local  governments 
were  mere  dependencies,  acting  under  concessions 
from  the  parent  government.  A  comparison  of  the 
several  colonial  administrations  of  these  colonies 
will  make  plain  at  once  how  different  were  their 
several  domestic  administrations.  The  colonial  or- 
ganization of  Massachusetts  was  altogether  different 
from  that  of  Maryland ;  that  of  Virginia  altogether 
different  from  that  of  Ehode  Island.  The  charters 
of  the  colonial  organizations  of  South  Carolina  and 
New  York  had  little  resemblance  to  each  other,  and 
so  on  with  all  the  colonies. 

The  mother  country,  while  exacting  paramount 
allegiance  to  herself  from  all  her  colonies,  had,  in 
her  dealings  with  them,  permitted  each  to  indulge  its 
idiosyncrasies  in  matters  of  local  concern,  with  so 
little  regard  to  uniformity  of  administration,  that 
the  thirteen  colonies  grew  up  with  little  of  simili- 
tude in  their  charter  rights,  and  little  in  common 
in  their  local  forms  of  government.  What  they  had 
in  common  was  their  British  citizenship,  and  their 
common  grievances  against  the  parent  government, 
which,  as  they  conceived,  had  deprived  them  of  the 
right  of  local  self-government.  This  British  citizen- 


CITIZENSHIP 


Chapter  ship,  in  common,  was  the  germ  of  their  united  action, 
and  afterwards  became  the  foundation  of  a  new 
citizenship,  known  as  American  citizenship,  on  which 
all  citizenship,  whether  of  the  United  States,  or  of 
the  States  and  Territories  and  possessions  subject 
to  its  jurisdiction,  now  rests.  And  this  brings  us 
to  — 

State  Citizenship. 


Effect  of 
Declara- 
tion  of 
Independ- 
ence. 


New  .  State 
constitu- 
tions. 


The  thirteen  independent  American  colonies,  by 
a  joint  Declaration  of  Independence  dated  July  4, 
1776,  asserted  their  common  purpose  to  maintain 
that  they  were  free,  independent,  and  sovereign 
States.  That  declaration,  if  it  could  be  successfully 
maintained,  carried  with  it  as  a  result,  that  their 
respective  inhabitants  were  no  longer  citizens  or 
subjects  of  Great  Britain,  but  were  thenceforth  citi- 
zens of  the  States  in  which  they  respectively  resided. 
England  resisted  this  contention  until  September  3, 
1783,  at  which  time  she  entered  into  a  definitive 
treaty  of  peace  with  the  representatives  of  these 
colonies,  recognizing  the  colonies,  name  by  name,  as 
free,  independent,  and  sovereign  States. 

After  thus  gaining  their  independence,  some  of 
the  States  proceeded  to  adopt  new  constitutions 
forthwith,  conforming  their  government  to  their 
changed  conditions;  while  others  found  their  royal 
charters  so  well  adapted  to  a  free  government,  that 
they  continued  to  live  under  them  for  many  years. 
The  most  remarkable  instance  of  this  is  the  State 
of  Ehode  Island,  which  continued  to  govern  itself 
under  the  forms  of  its  royal  charter  until  the  year 
1843.  Even  then,  the  attempt  to  adopt  a  new  con- 


CITIZENSHIP 


stitution  resulted  in  a  domestic  conflict,  familiarly    Chapter 
known  as  Dorr's  Rebellion,  for  a  full  account  of 
which  see  the  opinion  of  the  Supreme  Court  in  the 
case  of  Luther  v.  Borden.7 

While  the  revolutionary  struggle  lasted,  the  col- 
onies, calling  themselves  States,  co-operated  with  colomsts- 
each  other  through  the  device  of  a  league  under  the 
name  of  the  United  States,  represented  by  a  Conti- 
nental Congress.  The  objects  for  which  this  league 
and  congress  were  created,  were  to  assert  and  prose- 
cute measures  in  common  for  attaining  the  inde- 
pendence of  the  States.  Through  this  league,  they 
also  bound  themselves  by  mutual  obligations,  not  to 
negotiate  for  peace,  or  for  any  other  purpose,  with 
the  parent  country,  save  through  the  appointees  of 
the  Continental  Congress ;  and  the  peace  which  was 
finally  negotiated  was  brought  about  by  a  treaty 
entered  into  on  behalf  of  the  United  Colonies,  by 
commissioners  appointed  by  the  Continental  Con- 
gress. 

But  the  independence  demanded  by  the  colonies 
and  the  citizenship  recognized  by  Great  Britain  were  cSat  3 

Britain. 

the  independence  and  citizenship  of  thirteen  sov- 
ereign and  independent  States,  and  not  of  any  one 
national  political  body.  This  could  not  have  been 
otherwise,  for  the  words  "United  States,"  while 
they  were  employed  in  the  Declaration  of  Independ- 
ence and  in  the  Articles  of  Confederation  under 
which  the  revolutionary  struggle  was  conducted, 
were  manifestly  used  in  a  plural  sense,  as  expressing 
the  States  united,  and  the  compact  entered  into  be- 
tween the  colonies  shows,  upon  its  face,  that  it  was 

7  (1849)    7  How.    (U.   S.)    1. 


8 


CITIZENSHIP 


Chapter  not  entered  into  to  create  a  new  political  body  reach- 
ing  or  operating  upon  the  unit  of  the  citizen.  All  the 
powers  possessed  by  the  confederated  government 
were  derived  from  and  to  be  exercised  upon  and 
through  the  legislatures  which  created  it,  represent- 
ing States  and  not  individuals.  Any  effort  of  the 
federal  authority  to  command  or  enforce  allegiance 
to  it  directly  from  the  citizens  of  those  States,  save 
in  a  few  particulars  provided  for  in  the  Articles  of 
Confederation,  would  have  aroused  indignant  pro- 
tests from  the  States,  and  would,  perhaps,  have  re- 
sulted in  a  dissolution  of  the  confederacy. 

The  date  insisted  upon  by  the  thirteen  States,  as 
that  at  which  their  inhabitants  ceased  to  be  colonial 
subjects  of  Great  Britain,  and  became  citizens  of 
their  respective  States,  was  July  4, 1776.  The  Eng- 
lish authorities,  on  the  other  hand,  fixed  September 
3,  1783,  the  date  of  the  definitive  treaty  acknowl- 
edging the  independence  of  the  States,  as  the  true 
date  from  which  to  reckon.8  This  question  has  long 
since  ceased  to  be  of  any  importance  as  bearing  upon 
any  property  rights,  and  in  so  far  as  it  relates  to 
whether  State  citizenship  antedated  national  citizen- 
ship, it  makes  no  difference  which  date  is  assumed  to 
be  correct ;  for  the  relations  of  the  States  to  the  fed- 
eral compact  were  substantially  the  same  in  1776  as 
in  1783. 

The  Declaration  of  Independence  affirmed  that 
the  United  Colonies  ought  to  be  free  and  independent 
States.  The  Articles  of  Confederation  were  agreed 
upon  by  delegates  November  15,  1777.  After  an- 
nouncing a  name  for  the  confederacy  between  the 

singlis  v.  Sailor's  Snug  Harbour,    (1830)    3  Pet.    (U.  S.)    121. 


CITIZENSHIP 


States,  it  proceeded  to  declare  that  each  State  re-    Chapter 

tained  "its  sovereignty,  freedom  and  independence,  L 

and  every  power,  jurisdiction  and  right,  which  is  not 
by  this  confederation  expressly  delegated  to  the 
United  States  in  Congress  assembled. "  The  Con- 
gress was  composed  of  delegates  chosen  annually,  as 
State  legislatures  might  direct,  and  the  delegates 
were  maintained  by  the  States.  In  determining 
questions  in  the  Congress,  each  State  had  one  vote. 
The  duty  of  raising  their  respective  quotas  of  troops 
was  imposed  upon  the  States,  and  the  privilege  of 
naming  all  officers  of  or  under  the  rank  of  colonel. 
The  States  undertook  to  supply  all  funds  to  the  com- 
mon treasury,  and  the  taxes  for  defraying  the  ex- 
penses of  the  confederacy  were  to  be  laid  and  levied 
by  the  State  legislatures,  each  State  paying  her  pro- 
portion. There  was  no  president  or  common  ruler 
over  the  confederacy  of  States,  and  the  limited 
federal  authority  conferred  upon  Congress  by  the 
Articles  of  Confederation  was  intrusted  to  the  con- 
trol and  direction  of  a  committee  of  Congress. 

Such  was  the  confederacy  existing  between  the 
States  when  Great  Britain  acknowledged  them  as 
independent  sovereign  States.  It  requires  little  ar- 
gument to  demonstrate  that  a  mere  agency  such  as 
this,  operating  under  a  limited  authorization  and 
without  any  power  to  levy  taxes  or  draft  troops,  was 
not  a  political  body  entitled  to  claim  that  any  indi- 
vidual was  its  citizen,  and  while  State  citizenship 
necessarily  followed  at  once  to  the  inhabitants  of  the 
colonies,  respectively,  upon  the  acknowledgment  of 
their  independence,  no  citizenship  of  the  United 
States  was  recognized  or  even  existed. 


CITIZENSHIP 

Chapter         The  writings  of  Mr.  Hamilton  and  Mr.  Madison, 

preserved  in  The  Federalist,  written  long  after  the 

A  new       acknowledgment  of  the  independence  of  the  colonies. 

citizen- 

Josed- *  are  Ml  °f  complaints  against  the  Articles  of  Con- 
Ira!istFed"  federation,  on  this  score.  They  are  appeals  for  a 
change  from  this  condition,  and  urge  upon  the  peo- 
ple to  remedy  these  defects  by  adopting  the  pro- 
posed constitution  and  creating  the  new  citizenship. 
The  Constitution  of  the  United  States  was  proposed 
September  17,  1787,  and  the  operations  of  the  gov- 
ernment began  under  it  March  4,  1789.  The  Feder- 
alist papers  were  written  in  that  interval,  urging  the 
adoption  of  the  Constitution  by  the  States.  In  the 
fifteenth  paper  of  The  Federalist,9  Mr.  Hamilton  dis- 
cusses "the  insufficiency  of  the  present  confedera- 
tion to  the  preservation  of  the  Union, ' '  as  follows : 

"The  great  and  radical  vice  in  the  construction 
of  the  existing  confederation  is  the  principle  of 
legislation  for  states  or  governments,  in  theii  cor- 
porate or  collective  capacities,  and  as  contradistin- 
guished from  the  individuals  o*f  which  they  con- 
sist. .  .  .  Except  as  to  the  rule  of  appointment, 
the  United  States  has  an  indefinite  discretion  to 
make  requisitions  for  men  and  money ;  but  they  have 
no  authority  to  raise  either,  by  regulations  extending 
to  the  individual  citizens  of  America.  The  conse- 
quence of  this  is,  that  although  in  theory  their  reso- 
lutions concerning  those  objects  are  laws,  constitu- 
tionally binding  on  the  members  of  the  Union,  yet 
in  practice  they  are  mere  recommendations  which 
the  States  observe  or  disregard  at  their  option. 
.  .  .  If  we  still  adhere  to  the  design  of  a  national 

»  The  Federalist  (Lodge,  1892),  p.  86. 


CITIZENSHIP 


government    ...    we  must  extend  the  authority    Chapter 
of  the  Union  to  the  persons  of  the  citizens  —  the  _ 
only  proper  objects  of  government." 

Again,  in  the  twenty-third  paper  l  the  same  illus- 
trious authority  declared:  "If  we  are  in  earnest 
about  giving  the  Union  energy  and  duration,  we  must 
abandon  the  vain  project  of  legislating  upon  the 
States  in  their  collective  capacities  ;  we  must  extend 
the  laws  of  the  federal  government  to  the  individual 
citizens  of  America." 

The  above  citations,  which  are  but  two  of  many, 
are  sufficient  to  demonstrate  that  under  the  peculiar  JTstates. 
organization  of  the  United  States,  as  it  was  orig- 
inally formed,  the  powers  or  authority  of  the  gen- 
eral government  did  not  extend  to  individuals,  save 
in  a  few  isolated  instances,  and  that  consequently 
the  only  real  citizenship  was  that  of  States.  Mr. 
Hamilton,  in  both  his  references  to  citizens,  spoke  of 
them,  not  as  citizens  of  the  United  States,  but  as 
citizens  of  America,  doubtless  adopting  that  form 
of  expression  as  more  correct  in  describing  the  citi- 
zens of  the  States  generally. 

Until  the  ratification  of  the  Constitution  of  the 


United  States  by  nine  States,  it  was  a  nullity.  New  shVp.en" 
Hampshire  was  the  ninth  State  to  ratify.  The  date 
of  its  action  was  June  21,  1788.  Virginia  and  New 
York  ratified  the  Constitution  a  few  days  later,  and 
before  the  date  fixed  for  commencing  the  operations 
of  the  government.  Thus,  for  the  first  time,  there 
was  such  a  thing  as  citizenship  of  the  United  States. 
That  citizenship  did  not  extend  to  North  Carolina 
until  January  28,  1790,  or  to  Ehode  Island  until  June 

iThe  Federalist    (Lodge,  1892),   p.   137. 


12  CITIZENSHIP 


Chapter    i?  179Q,  for  those  States  delayed  their  ratifications 

'        until  after  the  operations  of  the  government  had 

begun. 

In  the  United  States  custom  house  at  New  York, 
one  may  see  a  list  of  the  vessels  which  entered  the 
port  of  New  York  during  the  first  year  after  'the 
Constitution  of  the  United  States  went  into  effect, 
and  in  that  list,  entered  as  vessels  arriving  from 
"foreign  ports,"  are  several  ships  from  Ehode 
Island. 

Thus  we  see  that,  in  eleven  of  the  original  States, 
State  citizenship  antedated  Federal  citizenship  over 
five  years,  and  in  two  other  States  nearly  seven 
years. 

SweSi  Speaking  of  the  interim  between  the  acknowledg- 

"ndence  ment  of  the  independence  of  the  colonies  and  the 
lt?osn~e  adoption  of  the  Constitution,  John  Fiske,  in  his 
History  of  the  United  States,  says:  2  "Perhaps  the 
only  thing  that  kept  the  Union  from  falling,  to 
pieces  in  1786  was  the  Northwestern  Territory, 
which  George  Eogers  Clark  had  conquered  in  1779, 
and  which  skilful  diplomacy  had  enabled  us  to  keep 
when  the  treaty  was  drawn  in  1782.  Virginia 
claimed  this  territory  and  actually  held  it,  but  New 
York,  Massachusetts,  and  Connecticut  also  had 
claims  upon  it.  It  was  the  idea  of  Maryland  that 
such  a  vast  region  ought  not  to  be  added  to  any  one 
State,  or  divided  between  two  or  three  of  the  States, 
but  ought  to  be  the  common  property  of  the  Union. 
Maryland  had  refused  to  ratify  the  Articles  of  Con- 
federation until  the  four  States  that  claimed  the 
Northwestern  Territory  should  yield  their  claims  to 

e  Edition  1900. 


CITIZENSHIP 


the  United  States.  This  was  done  between  178(7  and 
1786,  and  thus,  for  the  first  time,  the  United  States 
government  was  put  in  possession  of  valuable  prop- 
erty which  could  be  made  to  yield  an  income  and 
'pay  debts.  This  piece  of  property  was  about  the 
first  thing  in  which  all  the  American  people  were 
alike  interested,  after  they  had  won  their  independ- 
ence. '  ' 

In  the  light  of  the  above  historical  facts,  it  is  not  2SK2? 
strange  that  the  discussions,  prior  to  the  great  Civil 
War,  on  the  question  whether  paramount  allegiance 
was  due  to  their  State,  or  to  their  Nation,  by  the  citi- 
zens of  the  States  respectively,  led  to  a  difference  of 
opinion  on  that  question  between  citizens. 

Citizenship  of  the  Northwest  Territory. 

The   United   States,   as   constituted  under  the  %rrdi£0avnce 
Articles  of  Confederation,  having  come  into  posses- 


sion  of  the  large  unsettled  territory  above  referred 
to,  by  the  cession  of  Great  Britain  and  the  subse^ 
quent  cession  of  their  rights  by  the  several  States 
which  laid  claim  to  it,  the  Continental  Congress  un- 
dertook to  pass,  in  1787,  the  famous  ordinances  lay- 
ing down  certain  fundamental  laws  for  the  govern- 
ment of  that  territory,  and  in  States  which  might 
thereafter  be  formed  out  of  that  territory.  The 
States  of  Ohio,  Indiana,  Illinois,  Michigan,  and  Wis- 
consin were  subsequently  erected  and  admitted  into 
the  Union,  and  those  five  embrace  what  was  then 
known  as  the  Northwest  Territory. 

Of  the  action  of  the  Continental  Congress  in  as- 
suming to  pass  these  ordinances,  Mr.  Madison  says 
in  the  thirty-seventh  paper  of  The  Federalist,3  that 

s  Lodge,  1902,  p.  231. 


14  CITIZENSHIP 


chapter  in  proceeding  to  form  new  States,  to  erect  temporary 
*  governments,  to  appoint  officers  for  them,  and  to 
prescribe  the  conditions  on  which  such  States  should 
be  admitted  into  the  confederacy,  the  Congress 
acted  "without  the  least  color  of  constitutional  au- 
thority/' The  justification  for  this  action  stated  by 
him  was :  * '  The  public  interest,  the  necessity  of  the 
case,  imposed  upon  them  the  task  of  overleaping 
their  constitutional  limits. "  From  this  necessity  of 
violating  the  constitutional  authority,  he  proceeded 
to  argue:  "But  is  not  the  fact  an  alarming  proof 
of  the  danger  resulting  from  a  government  which 
does  not  possess  regular  powers  commensurate  to 
its  objects?  A  dissolution  or  usurpation  is  the 
dreadful  dilemma  to  which  it  is  continually  exposed. ' ' 
cont1nenf  Whether  the  Continental  Congress  did  or  did  not 
S*gfc  possess  power  to  enact  the  ordinances  of  1787,  the 
necessity  that  some  one  should  take  steps  to  that  end 
was  manifest  to  every  one,  and  the  action  of  the 
Continental  Congress  was  not  only  acquiesced  in 
by  all  the  States,  but  the  ordinance  has  come  down 
to  posterity  as  one  of  the  wisest  charts  of  govern- 
ment ever  framed.  This  territory  had  come  into 
the  possession  of  the  United  States  under  the  follow- 
ing circumstances: 

settlement  When  the  treaty  of  peace  was  negotiated  between 
territory.  England  and  ^  United  States,  the  boundary  lying 
between  the  English  possessions  and  the  country 
whose  independence  was  acknowledged,  was  fixed  as 
running  through  the  centres  of  Lakes  Ontario,  Erie, 
Huron,  and  Superior,  and  thence  westward  through 
the  Lake  of  the  Woods  to  the  Mississippi,  whereby 
the  vast  and  rich  domain  lying  between  the  Great 


CITIZENSHIP  15 


Lakes  and  tJie  Ohio  and  Mississippi  rivers  became 
a  part  of  the  country  acknowledged  as  independent. 
Settlers  rapidly  flocked  to  that  territory,  and  condi- 
tions there  called  for  the  organization  of  some  sort 
of  political  body  for  its  government.  Neither  the 
Federal  government,  nor  the  State  of  Virginia,  had 
been  able  to  discharge  their  debts  to  Eevolutionary 
soldiers,  and  Virginia,  before  the  cession  of  her  ter- 
ritory to  the  United  States,  had  issued  many  mili- 
tary land  grants  in  this  territory  to  her  soldiers. 
When  the  Continental  army  at  Newburg  threatened 
to  march  upon  Philadelphia  in  the  year  1783,  because 
it  had  not  been  paid,  its  violence  was  allayed  by 
the  assurances  of  General  Washington  that  he  would 
do  all  in  his  power  to  induce  the  government  to  make 
provision  for  discharging  its  obligations  to  the 
soldiers,  in  part  at  least,  by  military  land  grants  in 
the  Northwest  Territory.  Pursuant  to  that  pledge, 
Congress  did  make  large  land  grants  in  the  North- 
west Territory,  in  that  portion  now  known  as  Ohio, 
to  Eevolutionary  soldiers.  After  the  armies  were 
disbanded,  large  colonies  of  people  from  the  original 
States  promptly  settled  in  the  Ohio  territory,  under 
the  leadership  of  Paul  Carrington  of  Virginia,  and 
General  Eufus  Putnam  of  Connecticut,  and  thus  it 
came  about  that  at  the  time  of  the  passage  of  this 
famous  ordinance,  a  considerable  and  representative 
body  of  unorganized  people  were  in  occupancy  of 
the  Northwest  Territory,  demanding  some  form  of 
government  and  some  right  of  representation. 

The  ordinance  passed  by  the  Continental  Con- 
gress,  pursuant  to  this  urgency,  announced  certain  compact. 
fundamental  articles,  which  were  to  rest  upon  any 


16  CITIZENSHIP 


Chapter    an(j  a\i  governments  formed  in  the  territory,  and  de- 

! clared  that  the  obligation  to  adopt  these  fundamental 

principles  should  be  regarded  as  a  compact  between 
the  original  States  and  the  people  and  States  in  said 
territory,  and  that,  having  been  adopted,  they  should 
forever  remain  unalterable,  unless  by  common  con- 
sent. 

It  will  be  noted,  that  Congress  was  so  doubtful  of 
its  own  powers,  that  it  made  the  compact  obligatory, 
not  between  the  United  States  and  the  people  of  this 
territory,  but  between  the  original  States  and  the 
people. 

righScaland  It  ig  unnecessary  to  enumerate  at  length  the  fun- 
sh^eunder  damental  principles  laid  down  for  the  government  of 
nhance°rdi"  the  Northwest  Territory.4  The  Act  provided  for  the 
erection  of  the  territory  into  a  district;  for  a  law 
of  descents;  and  for  a  form  of  civil  government, 
Tinder  a  governor  and  secretary  appointed  by  Con- 
gress. It  gave  the  people  of  the  territory  the  right 
to  elect  a  general  assembly  by  popular  election.  In 
prescribing  the  qualifications  of  a  candidate,  and  of 
voters,  it  required  that  they  should  have  been  citi- 
zens of  one  of  the  United  States  for  a  certain 
time.  It  gave  the  territorial  legislature  the  right 
to  elect  a  delegate  to  Congress,  who  was  to 
possess  a  seat  with  the  right  of  debate,  but 
no  vote.  Without  going  into  further  details  of 
this  government,  it  is  sufficient  to  say  that  it 
was  acceptable  to  the  people  and  a  remarkable 
spectacle  of  government.  For  the  United  States, 
which  had  no  citizens  of  its  own,  undertook  to 

*  See  the  text  of  the  Ordinance  in  Vol.  8,  Federal  Statutes,  Anno- 
tated, p.  17. 


CITIZENSHIP 


create  and  erect  a  government  of  citizens,  and  to 
prescribe,  to  the  minutest  detail,  their  obligations  of 
citizenship.  It  is  inconceivable  that  the  Continental 
Congress  would  have  made  the  qualifications  of  can- 
didates and  voters  depend  on  their  citizenship  of 
one  of  the  original  States,  if  there  had  been  such  a 
thing  at  the  time  as  citizenship  of  the  United  States. 
The  only  reference  in  the  Ordinance  of  1787  to 
"citizens  of  the  United  States"  is  in  Article  IV. 
That  is  manifestly  a  reference  to  conditions  m 
futuro,  made  with  the  knowledge  that  the  Constitu- 
tion was  then  in  process  of  formation  and  likely  to 
be  adopted,  whereby  citizens  of  the  United  States 
would  come  into  existence. 

Thus  we  have  the  second  class  of  American  citi- 
zenship, to  wit,  citizenship  of  the  Northwest  Terri- 
tory, both  of  which  classes  of  citizenship  antedated 
citizenship  of  the  United  States. 

Citizenship  of  t>Ke  United  States. 

When  the  Constitution  was  ratified  by  nine  of  the 
States  composing  the  old  confederacy,  and  not  until 
then,  was  there  an  actual  and  real  citizenship  of  the 
United  States,  however  much  the  term  may  have 
been  theretofore  loosely  employed.  The  States  rati- 
fied the  Constitution  in  the  following  order : 

1.  Delaware,  December  7,  1787 ; 

2.  Pennsylvania,  December  12,  1787 ; 

3.  New  Jersey,  December  18,  1787; 

4.  Georgia,  January  2, 1788 ; 

5.  Connecticut ,  January  9,  1788 ; 

6.  Massachusetts,  February  6,  1788; 

7.  Maryland,  April  28,  1788; 

2 


18 


CITIZENSHIP 


A    new 
govern- 
ment  and 
new    class 
of   citi- 
zens. 


8.  South  Carolina,  May  23,  1788; 

9.  New  Hampshire,  June  21, 1788. 

The  Constitution  provides,  Article  VII,  that  the 
ratification  of  the  conventions  of  nine  States  should 
be  sufficient  for  the  establishment  of  the  Constitution 
between  the  States  so  ratifying  the  same.  The  Con- 
stitution became  an  established  form  of  government 
June  21,  1788,  in  nine  States,  and  the  remaining 
States,  Virginia,  New  York,  North  Carolina,  and 
Ehode  Island,  when  they  ratified  it,  came  into  a  gov- 
ernment already  established.  This  attitude  of  Vir- 
ginia and  New  York  was  a  technical  rather  than  an 
actual  delay,  for  Virginia  ratified  the  Constitution 
June  26,  1788,  and  New  York  July  26,  1788,  and  the 
operations  of  the  government  under  the  new  Consti- 
tution did  not  begin  until  March  4,  1789. 

The  radical  changes  in  the  form  of  the  federal 
compact  altered  the  status  of  the  people  subject  to 
its  jurisdiction,  so  that,  whereas  they  had  thereto- 
fore been  only  citizens  of  the  States,  they  now  be- 
came also  citizens  of  the  United  States.5  The  first 
of  these  organic  changes  was  the  provision  of  Article 
VT,  Clause  2,  of  the  Constitution,  which  declared  the 
laws  of  the  United  States  made  pursuant  thereto, 

5  "  Every  person,  and  every  class  and  description  of  persons,  who 
were  at  the  time  of  the  adoption  of  the  Constitution  recognized  as 
citizens  in  the  several  States,  became  also  citizens  of  this  new  po- 
litical body."  Dred  Scott  v.  Sandford,  (1856)  19  How.  (U.  S.)  406. 

"  Whoever  .  .  .  was  one  of  the  people  of  either  of  these 
States  when  the  Constitution  of  the  United  States  was  adopted,  be- 
came ipso  facto  a  citizen  —  a  member  of  the  nation  created  by  its 
adoption.  He  was  one  of  the  people  associating  together  to  form 
the  nation,  and  was,  consequently,  one  of  its  original  citizens.  As 
to  this  there  has  never  been  a  doubt.  Disputes  have  arisen  as  to 
whether  or  not  certain  persons  or  certain  classes  of  persons  were 
part  of  the,  people  at  the  time,  but  never  as  to  their  citizenship  if  they 
were."  Minor  v.  Happersett,  (1874)  21  Wall.  (U.  S.)  162. 


CITIZENSHIP 


and  all  treaties  made  under  its  authority,  to  be  the 
supreme  law  of  the  land,  any  thing  in  the  consti- 
tution or  laws  of  any  State  to  the  contrary  notwith- 
standing. 

In  the  next  place,  the  government  created  by  the 
Constitution  was  clothed  with  ample  powers,  inde- 
pendent of  the  States,  to  maintain  itself,  and  to 
reach,  command,  direct,  and,  if  need  be,  to  punish, 
every  individual  subject  to  its  jurisdiction. 

Without  going  into  an  enumeration  of  those 
powers,  it  is  sufficient  to  say  that  the  government 
created  by  the  Constitution  became  a  government 
with  citizens  of  its  own,  and  was  no  longer  a  mere 
government  over  States. 

Yet  radical  as  was  this  change  in  the  nature  and 
constitution  of  the  federal  government,  the  new 
citizenship  is  referred  to  only  three  times  in  the  en- 
tire instrument,  as  it  was  originally  framed,  and 
then  only  incidentally.  The  first  reference  is  in 
Article  I,  Section  2,  Paragraph  2.  In  describing  the 
qualifications  of  a  member  of  the  House  of  Eepre- 
sentatives,  one  of  the  qualifications  was  declared  to 
be,  that  he  should  have  been  ' '  seven  years  a  citizen 
of  the  United  States."  The  second  reference  is  in 
Article  I,  Section  3,  Clause  3,  which  makes  one  of  the 
qualifications  of  a  senator,  that  he  should  have  been 
"nine  years  a  citizen  of  the  United  States."  The 
third  reference  is  in  Article  II,  Section  1,  Clause  5, 
which  enacted  that  "no  person,  except  a  natural 
born  citizen,  or  a  citizen  of  the  United  States  at  the 
time  of  the  adoption  of  this  Constitution,  shall  be 
eligible  to  the  office  of  President." 

If  these   requirements  had  been  literally  con- 


20  CITIZENSHIP 


Chapter    formed  to,  there  could  have  been  no  election  for 

' —  representatives  to  Congress  for  seven  years  after 

the  adoption  of  the  Constitution,  and  no  one  would 
have  been  eligible  as  a  senator  for  nine  years  there- 
after. The  language  employed  by  the  convention 
was  less  careful  than  that  which  had  been  used  by 
Congress  in  July  of  the  same  year,  in  framing  the 
ordinance  for  the  government  of  the  Northwest  Ter- 
ritory. Congress  had  made  the  qualification  rest 
upon  citizenship  of  "one  of  the  United  States, "  and 
this  was  doubtless  the  intent  of  the  convention  which 
framed  the  Constitution,  for  it  cannot  have  meant 
anything  else. 
who  were  The  silence  of  the  Constitution  and  its  failure  to 

citizens 

conSituew  define  the  meaning  of  the  word  citizen,  either  by 
way  of  inclusion  or  exclusion,  has  been  the  subject 
of  much  judicial  comment.6  Perhaps  the  best  ex- 
pression concerning  it  is  that  of  the  Supreme  Court 
of  the  United  States,  when  it  declares :  "In  this  re- 
spect, as  in  other  respects,  it  must  be  interpreted  in 
the  light  of  the  common  law,  the  principles  and  his- 
tory of  which  were  familiarly  known  to  the  framers 
of  the  Constitution."  7 

e  Prior  to  the  14th  article  of  amendment  to  the  Federal  Consti- 
tution no  definition  of  the  term  "  citizenship  "  was  to  be  "  found  in 
the  Constitution,  nor  had  any  attempt  been  made  to  define  it  by  Act 
of  Congress.  It  had  been  the  occasion  of  much  discussion  in  the 
courts,  by  the  executive  departments,  and  in  the  public  journals." 
Slaughter-House  Cases,  (1872)  16  Wall.  (U.  S.)  72. 

7U.  S.  v.  Wong  Kim  Ark,  (1897)  169  U.  S.  654. 

"  The  term  '  citizen '  was  used  in  the  Constitution  as  a  word,  the 
meaning  of  which  was  already  established  and  well  understood. 
And  the  Constitution  itself  contains  a  direct  recognition  of  the  sub- 
sisting common-law  principle,  in  the  section  which  defines  the  qualifi- 
cation of  the  President:  'No  person  except  a  natural  born  citizen, 
or  a  citizen  of  the  United  States  at  the  time  of  the  adoption  of  this 
Constitution,  shall  be  eligible  to  the  office  of  President,'  etc.  The 


CITIZENSHIP 


21 


In  the  famous  case  of  Dred  Scott  v.  Sandford8  it    Chapter 
was   said  that  the  words  "people  of  the  United        L 
States "   and   "citizens"    are    synonymous    terms; 
that  they  "describe  the  political  body  which,  accord- 
ing to  our  republican  institutions,  forms  the  sover- 
eignty which  holds  the  power  and  conducts  the  gov- 
ernment through  its  representatives." 

Sundry  opinions  of  the  attorney-generals  of  the 
United  States  are  to  the  same  effect.  In  one  of 
these,  rendered  in  1862,  it  is  said:  "The  Constitu- 
tion of  the  United  States  does  not  declare  who  are 
and  who  are  not  citizens,  nor  does  it  attempt  to 
describe  the  constituent  elements  of  citizenship;  it 
leaves  that  quality  where  it  found  it,  resting  on  the 
fact  of  home  birth  and  upon  the  laws  of  the  several 
States."9 

It  was  not  difficult  to  ascertain,  on  the  principles 
above  announced,  who  were  citizens  of  the  United 
States  under  the  original  Constitution.  The  citizens 
of  Vermont  and  Kentucky,  when  those  States  were 
admitted,  assumed  their  relations  to  the  Union  as 
naturally  as  did  those  of  any  of  the  original  States. 
So,  also,  the  citizens  of  the  region  now  constituting 

only  standard  which  then  existed  of  a  natural  born  citizen  was  the 
rule  of  the  common  law,  and  no  different  standard  has  been  adopted 
since."  Lynch  v.  Clarke,  (1844)  1  Sandf.  Ch.  (N.  Y.)  656. 

"  The  term  '  citizen,'  as  understood  in  our  law,  is  precisely  anal- 
ogous to  the  term  subject  in  the  common  law,  and  the  change  of 
phrase  has  entirely  resulted  from  the  change  of  government.  The 
sovereignty  has  been  transferred  from  one  man  to  the  collective  body 
of  the  people  —  and  he  who  before  was  a  '  subject  of  the  king '  is 
now  'a  citizen  of  the  State.'"  State  v.  Manuel,  (1838)  4  Dev.  & 
B.  L.  (N.  Car.)  26,  quoted  U.  S.  v.  Rhodes,  (1866)  1  Abb.  (U.  S.) 
39,  27  Fed.  Cas.  No.  16,151. 

s Dred  Scott  v.  Sandford,   (1856)   19  How.   (U.  S.)   393. 

»  Citizenship,    (1862)    10  Op.  Atty.-Gen.  382. 


22  CITIZENSHIP 


Chapter    five  great  States  erected  in  the  Northwest  Territory 

: —  became  citizens  of  the  United  States  the  instant  the 

Constitution  was  adopted.1 

menetrof  ^  ^e  Constitution,  power  was  given  Congress 

£KbS-ies'  (Article  IV,  Section  3,  Clause  2)  to  dispose  of  and 
make  all  needful  rules  and  regulations  respecting  the 
territory  or  other  property  belonging  to  the  United 
States.  Under  this  power,  the  process  of  governing 
the  Territories  and  organizing  them  into  States  was 
simplified.2 

i  Admission  on  an  equal  footing  with  the  original  States,  in  all 
respects  whatever,  involves  equality  of  constitutional  right  and  power, 
which  cannot  afterwards  be  controlled,  and  it  also  involves  the  adop- 
tion as  citizens  of  the  United  States  of  those  whom  Congress  makes 
members  of  the  political  community,  and  who  are  recognized  as  such 
in  the  formation  of  the  new  State  with  the  consent  of  Congress. 
Boyd  v.  Thayer,  (1891)  143  U.  S.  143. 

zM'Culloch  V.  Maryland,  (1819)  4  Wheat.  (U.  S.)  316;  Ameri- 
can Ins.  Co.  v.  356  Bales  Cotton,  (1828)  1  Pet.  (U.  S.)  511;  U.  S.  V. 
Gratiot,  (1840)  14  Pet.  (U.  S.)  526;  U.  S.  v.  Rogers,  (1846)  4  How. 
(U.  S.)  567;  Cross  V.  Harrison,  (1853)  16  How.  (U.  S.)  164; 
U.  S.  v.  Coxe,  (1855)  18  How.  (U.  S.)  100;  Gibson  v.  Chouteau, 
(1871)  13  Wall.  (U.  S.)  92;  Clinton  v.  Englebrecht,  (1871)  13  Wall. 
(U.  S.)  434;  Beale  v.  New  Mexico,  (1872)  16  Wall.  (U.  S.)  535. 

"The  Constitution  of  the  United  States  (article  four,  section 
three )  provides,  *  That  Congress  shall  have  power  to  dispose  of  and 
make  all  needful  rules  and  regulations  respecting  the  territory,  or 
other  property,  belonging  to  the  United  States/  The  term  territory, 
as  here  used,  is  merely  descriptive  of  one  kind  of  property;  and  is 
equivalent  to  the  word  lands.  And  Congress  has  the  same  power 
over  it  as  over  any  other  property  belonging  to  the  United  States; 
and  this  power  is  vested  in  Congress  without  limitation;  and  has 
been  considered  the  foundation  upon  which  the  territorial  govern- 
ments rest."  U.  S.  v.  Gratiot,  (1840)  14  Pet.  (U.  S.)  537. 

The  Constitution  empowers  Congress  "to  make  all  needful  rules 
and  regulations,  respecting  the  territory  or  other  property  belonging 
to  the  United  States;  and  perhaps  the  power  of  governing  a  terri- 
tory belonging  to  the  United  States,  which  has  not,  by  becoming 
a  State,  acquired  the  means  of  self-government,  may  result  neces- 
sarily from  the  facts,  that  it  is  not  within  the  jurisdiction  of  any 
particular  State,  and  is  within  the  power  and  jurisdiction  of  the 
United  States.  The  right  to  govern  may  be  the  inevitable  conse- 


CITIZENSHIP  23 


By  easy  transition  the  territory  acquired  from  Chapter 
France,  known  as  the  Louisiana  Territory,  and  the  - 
Florida  cession  from  Spain,  and  the  territory  ac- 
quired from  Mexico  by  conquest,  were  first  gov- 
erned territorially.  Under  these  territorial  govern- 
ments the  inhabitants  made  their  first  attornment 
as  citizens  of  the  United  States  to  the  Federal  au- 
thority, and  when  the  States  created  from  this  terri- 
tory were  organized  and  admitted,  they  assumed 
their  obligations  of  dual  citizenship  to  State  and 
Nation,  of  a  nature  and  a  quality  identical  with  that 
of  citizens  of  the  old  States. 

Besides  these  citizens,  who  became  such  in  a  body, 
a  vast  number  of  citizens  of  the  United  States  were 
created  under  the  powers  of  naturalization  conferred 
upon  Congress  by  the  Constitution. 

Among  the  first  powers  conferred  upon  Congress 
by  Article  I,  Section  8,  Clause  4,  was  "to  establish 
a  uniform  rule  of  naturalization."  3 

Laws  were  passed,  and  the  naturalized  citizens 
admitted  under  these  laws  distributed  themselves 

quence  of  the  right  to  acquire  territory.  Whichever  may  be  the 
source  whence  the  power  is  derived,  the  possession  of  it  is  unques- 
tioned." Per  Chief  Justice  Marshall  in  American  Ins.  Co.  v.  35S 
Bales  Cotton,  (1828)  1  Pet.  (U.  S.)  511.  To  the  same  effect,  Sere  v. 
Pitot,  (1810)  6  Cranch  (U.  S.)  332. 

sQassies  v.  Ballon,  (1832)  6  Pet.  (U.  S.)  761;  Dred  Scott  r. 
Sandford,  (1856)  19  How.  (U.  S.)  393;  Minneapolis  v.  Reum,  (C.  C. 
A.  1893)  56  Fed.  Rep.  580.  See  also  the  notes  on  the  Constitution 
dealing  with  this  subject  in  Vol.  8,  Federal  Statutes,  Annotated,  p. 
579. 

"The  Constitution  declares  that  the  citizens  of  each  State  shall 
be  entitled  to  all  the  privileges  and  immunities  of  citizens  in  the 
several  States.  ...  It  made  all  alike,  citizens  of  the  newly 
organized  nation,  and  in  this  respect  a  homogeneous  people.  And 
the  very  necessity  for  such  a  provision  to  bring  all  upon  a  common 
platform,  exhibited  in  the  strongest  light  the  absolute  need  of  guard- 
ing against  different  and  discordant  rules  for  establishing  the  right 


24  CITIZENSHIP 


Chapter    among   the    several   State   or   Territorial   comnm- 

nities    of    which    they    became   members.    But   it 

did  not  follow  as  a  necessary  consequence  that  a 
naturalized  citizen  of  the  United  States  became  also 
a  citizen  of  any  State  or  Territory. 

StfonseSi          The  original  Constitution  remained  unchanged 
whftf  ej£d  concerning  citizenship,  from  1789  until  July  28, 1868, 
habitants,     when  the  Fourteenth  Amendment  to  the  Constitution 
was  adopted.    Before  entering  into  a  discussion  of 
the  effect  upon  citizenship,  and  the  manner  of  en- 
forcement, of  that  amendment,  a  brief  historical 
statement  is  necessary. 

i  Even  prior  to  the  adoption  of  the  Constitution, 
sectional  jealousies  existed  between  the  States.  The 
basis  of  representation  in  the  national  Congress  was 
a  fruitful  source  of  controversy  between  them.  The 
population  of  the  northern  colonies  was  almost  ex- 
clusively white  and  free,  whereas  that  of  the  south- 
ern colonies  consisted,  to  a  large  extent,  of  black 
slaves.  The  extent  to  which  this  black  population 
was  to  be  considered  in  arranging  a  basis  of  repre- 
sentation gave  rise  to  many  of  the  controversies 
between  the  sections,  at  the  outset. 

The  basis  of  representation  in  Congress  fixed  by 
the  Constitution,  Article  I,  Section  2,  Clause  3,  ap- 
portioned representatives  among  the  several  States 
according  to  their  respective  numbers,  which  were  to 
be  determined  by  adding  to  the  whole  number  of  free 
persons,  three-fifths  of  all  other  persons,  exclusive 
of  Indians  not  taxed. 

of  citizenship  in  future.  We  therefore  find  that  one  of  the  first 
powers  conferred  upon  Congress  was  '  to  establish  an  uniform  rule 
of  naturalization  throughout  the  United  States/  "  Lynch  v.  Clarke, 
(1844)  1  Sandf.  Ch.  (N.  Y.)  641,  642. 


CITIZENSHIP  25 


The  Constitution  conferred  power  on  Congress    Chapter 
to  dispose  of  and  make  all  needful  rules  and  regu-        L 


lations  respecting  the  territory,  or  other  property,  under-the 
belonging  to  the  United  States.4     It  likewise  con-  £"*"• 
ferred  upon  Congress  the  power  to  admit  new  States 
into  the  Union.5 

The  Constitution  contained  a  provision  that  no 
person  held  to  service  or  labor  in  one  State,  under 
the  laws  thereof,  escaping  into  another  State,  should 
in  consequence  of  any  law  or  regulation  therein  be 
discharged  from  such  service  or  labor,  but  that  he 
should  be  delivered  up  on  claim  of  such  party  to 
whom  such  service  or  labor  might  be  due.6 

*  Const.,  Art.  IV,  Sec.  3,  Cl.  2;  M'Culloch  v.  Maryland,  (1819) 
4  Wheat.  (U.  S.)  316;  American  Ins.  Co.  v.  356  Bales  Cotton, 
(1828)  1  Pet.  (U.  S.)  511;  U.  S.  v.  Gratiot,  (1840)  14  Pet.  (U.  S.) 
526;  U.  S.  v.  Rogers,  (1846)  4  How.  (U.  S.)  567;  Cross  v.  Harrison, 
(1853)  16  How.  (U.  S.)  164;  U.  S.  v.  Coxe,  (1855)  18  How. 
(U.  S.)  100;  Gibson  V.  Chouteau,  (1871)  13  Wall.  (U.  S.)  92; 
Clinton  v.  Englebrecht,  (1871)  13  Wall.  (U.  S.)  434;  Beall  v.  New 
Mexico.  (1872)  16  Wall.  (U.  S.)  535;  Davis  v.  Beason,  (1890) 
133  U.  S.  333;  Wisconsin  Cent.  R.  Co.  V.  Price  County,  (1890)  133 
U.  S.  496;  Cope  v.  Cope,  (1891)  137  U.  S.  682;  Church  of  Jesus 
Christ  v.  U.  S.,  (1890)  136  U.  S.  1;  Dooley  v.  U.  S.,  (1901)  182  U.  S. 
222;  Downes  v.  Bidwell,  (1901)  182  U.  S.  244;  Dooley  v.  U.  S., 
(1901)  183  U.  S.  151. 

s  Const.,  Art.  IV,  Sec.  3,  Cl.  1 ;  American  Ins.  .Co.  v.  356  Bales 
Cotton,  (1828)  1  Pet.  (U.  S.)  511;  Pollard  v.  Hagan,  (1845)  3  How. 
(U.  S.)  212;  Cross  V.  Harrison,  (1853)  16  How.  (U.  S.)  164. 

e  Const.,  Art.  IV,  Sec.  2,  Cl.  3;  Prigg  v.  Pennsylvania,  (1842) 
16  Pet.  (U.  S.)  539;  Jones  v.  Van  Zandt,  (1847)  5  How.  (U.  S.) 
215 j  Strader  v.  Graham,  (1850)  10  How.  (U.  S.)  82;  Moore  v.  Illi- 
nois, (1852)  14  How.  (U.  S.)  13;  Dred  Scott  v.  Sandford,  (1856)  19 
How.  (U.  S.)  393;  Ableman  v.  Booth,  (1858)  21  How.  (U.  S.)  516; 
Callan  V.  Wilson,  (1888)  127  U.  S,  540;  Nashville,  etc.,  R.  Co.  v.  Ala- 
bama, (1888)  128  U.  S.  96. 

"  Historically,  it  is  well  known  that  the  object  of  this  clause  was 
to  secure  to  the  citizens  of  the  slaveholding  States  the  complete  right 
and  title  of  ownership  in  their  slaves,  as  property,  in  every  State 
in  the  Union  into  which  they  might  escape  from  the  State  where 


26  CITIZENSHIP 


Chapter         The  relative  strength  of  the  sections  North  and 
South  was  altogether  different  at  that  time  from 


lnderevilws  w^a^  ^  ig  at  Present  5  even  the  white  population  of 
and  ^outh.  the  southern  States,  in  which  slavery  existed,  as 
compared  with  that  of  the  northern  States,  where 
slavery  did  not  exist,  was  proportionately  larger 
than  it  is  at  present,  and  on  the  basis  set  forth  above 
the  northern  States  were  jealous  of  the  preponder- 
ance of  representation  given  to  the  southern  States. 
It  was  argued  by  those  opposed  to  the  Constitution 
in  the  North,  that  it  placed  the  northern  States, 
especially  the  small  ones,  at  the  mercy  of  the 
southern  States,  in  the  Union,  It  was  this  argu- 
ment, no  doubt,  that  made  Ehode  Island  reluctant  to 
become  a  member  of  the  Union.  On  the  other  hand, 
the  southern  States  realized  that  the  population  of 
the  North  was  growing  much  more  rapidly  than  that 
of  the  South,  and  that  it  was  spreading  into  the  Ter- 
ritories and  would  demand  that  those  Territories  be 
formed  into  new  States  and  admitted  into  the  Union 
as  free  States.  It  was  argued  by  those  opposed  to 
the  Union  in  the  South,  that  such  a  result  was  inevi- 
table; that  in  a  short  time  the  slaveholding  States 
would  be  dominated  by  the  free  States  of  the  North 
and  West,  and  that  they,  by  the  control  thus  gained 
in  Congress  over  the  Territories  and  concerning  the 

they  were  held  in  servitude.  The  full  recognition  of  this  right  and 
title  was  indispensable  to  the  security  of  this  species  of  property 
in  all  the  slaveholding  States;  and,  indeed,  was  so  vital  to  the 
preservation  of  their  domestic  interests  and  institutions,  that  it  can- 
not be  doubted  that  it  constituted  a  fundamental  article,  without 
the  adoption  of  which  the  Union  could  not  have  been  formed.  Its 
true  design  was  to  guard  against  the  doctrines  and  principles  preva- 
lent in  the  non-slaveholding  States,  by  preventing  them  from  inter- 
meddling with,  or  obstructing,  or  abolishing  the  rights  of  the  owners 
of  slaves."  Prigg  v.  Pennsylvania,  (1842)  16  Pet.  (U.  S.)  611. 


CITIZENSHIP  27 


admission  of  free  States,  would  put  the  slave  States    Chapter 
at  the  mercy  of  the  free  States  in  federal  affairs.     It  -     L 
was  doubtless  by  arguments  like  this,  that  North 
Carolina  was  restrained  so  long  from  becoming  a 
member  of  the  Union. 

The  Constitution  contained  no  definite  expression 
upon  the  right  of  the  States  to  withdraw  from  the 
Union  if  they  became  dissatisfied.  In  spite  of  many 
attempts  to  have  that  right  defined,  the  convention 
refused  to  do  so. 

These  conditions  gave  rise  from  the  outset  to 
such  antagonism  between  the  sections,  that  it  was 
found  impossible  to  procure  the  assent  of  Congress 
to  the  admission  of  new  States,  except  in  couplets, 
one  with  and  one  without  slavery.  This  method  of 
admitting  States  began  with  the  States  of  Vermont 
and  Kentucky,  and  continued  until  the  controversies 
over  the  regulation  of  slavery  in  the  Territories,  the 
returning  of  fugitive  slaves,  and  the  right  of  States 
to  secede,  culminating  in  an  attempt  in  the  year  1861, 
on  the  part  of  the  slave  States,  to  withdraw  from  the 
Union,  and  a  consequent  civil  war,  in  which  the 
northern  States  were  triumphant. 

While  the  controversy  over  slavery  was  at  its  |j£ttDred 
height,  a  case  was  decided  by  the  Supreme  Court  of  decision- 
the  United  States,  in  which  the  status  of  the  negro 
race,  under  the  Constitution,  was  defined.7     The  de- 
cision was  rendered  in  the  year  1857,  and  the  ques- 
tion involved  was  deemed  to  be  of  such  importance 
that  the  opinions  delivered  occupied  two  hundred 
and  forty  pages  of  the  volume  in  which  they  appear. 
The  points  relating  to  citizenship  decided  by  the 

7Dred  Scott  V.  Sandford,   (1856)    19  How.    (U.  S.)   393. 


28  CITIZENSHIP 


Supreme  Court,  in  an  opinion  of  great  power  deliv- 
ered by  Chief  Justice  Taney,  were :  "  A  free  negro 
of  the  African  race,  whose  ancestors  were  brought  to 
this  country  and  sold  as  slaves,  is  not  a  'citizen' 
within  the  meaning  of  the  Constitution  of  the  United 
States.  .  .  .  When  the  Constitution  was  adopted, 
they  were  not  regarded  in  any  of  the  States  as  mem- 
bers of  the  community  which  constituted  the  State, 
and  were  not  numbered  among  its  *  people  or  citi- 
zens.' Consequently  the  special  rights  and  im- 
munities guaranteed  to  citizens  do  not  apply  to 
them.  .  .  .  The  only  two  clauses  in  the  Consti- 
tution which  point  to  this  race  treat  them  as  per- 
sons whom  it  was  morally  lawful  to  deal  in  as 
articles  of  property  and  to  hold  as  slaves." 

This  finally  adjudged  status  of  the  negro  race 
continued  to  be  the  law  of  the  land  until  it  was 
changed  by  the  following  events. 

fndessematt-  In  December,  1862,  the  war  between  the  United 
States  and  the  States  which  had  attempted  to  secede 
from  the  Union,  having  then  been  flagrant  for  nearly 
two  years,  with  its  result  still  in  doubt,  the  President 
of  the  United  States  issued  a  proclamation  con- 
ditionally emancipating  all  the  slaves  in  the  States 
whose  armed  forces  were  opposed  to  those  of  the 
United  States.  By  subsequent  proclamations,  this 
conditional  emancipation  of  the  slaves  was  made 
absolute.  The  President  did  not  claim  to  justify  this 
proclamation  by  any  express  warrant  of  the  Consti- 
tution, but  it  was  claimed  by  him  to  be  a  war  meas- 
ure, legitimate  as  a  means  of  weakening  and  injuring 
an  enemy  in  arms.  We  need  not  therefore  consider 


CITIZENSHIP 


29 


Chapter 
I. 


it  further  as  a  measure  of  law.    It  was  emphatically 
a  measure  of  the  war. 

In  April,  1865,  the  armies  of  the  United  States 
conquered  the  armies  of  the  States  which  attempted  ment' 
to  secede,  and  those  States,  with  their  people,  were 
at  the  mercy  of  the  conqueror,  subject  to  such  terms 
as  it  saw  fit  to  impose.  In  anticipation  of  this  vic- 
tory, the  Congress  of  the  United  States,  February  1, 
1865,  proposed  to  the  legislatures  of  the  several 
States  an  amendment,  known  as  Article  XIII,  in  ad- 
dition to,  and  amendment  of,  the  Constitution  of  the 
United  States,  in  the  words  and  figures  following: 

"ARTICLE  XIII. 

"  SECTION  1.  Neither  slavery  nor  involuntary  servitude,  ex- 
cept as  a  punishment  for  crime  whereof  the  party  shall  have 
been  duly  convicted,  shall  exist  within  the  United  States,  or  any 
place  subject  to  their  jurisdiction."  8 

December  18,  1865,  the  secretary  of  state  pro-  Ratifica- 
tion of 

XIII 

s  White  v.  Hart,  (1871)  13  Wall.  (U.  S.)  646;  Osborn  v.  Nichol-  Amend- 
son,  (1871)  13  Wall.  (U.  S.)  654;  Slaughter-House  Cases,  (1872) 
16  Wall.  (U.  S.)  36;  Strander  v.  West  Virginia,  (1879)  100  U.  S. 
303;  Ex  p.  Virginia,  (1879)  100  U.  S.  339;  Civil  Rights  Case,  (1883) 
109  U.  S.  3;  Plessy  v.  Ferguson,  (1896)  163  U.  S.  537; 'Robertson  v. 
Baldwin,  (1897)  165  U.  S.  275. 

"  When  the  armies  of  freedom  found  themselves  upon  the  soil  of 
slavery  they  could  do  nothing  less  than  free  the  poor  victims  whose 
enforced  servitude  was  the  foundation  of  the  quarrel.  .  .  .  The 
proclamation  of  President  Lincoln  expressed  an  accomplished  fact 
as  to  a  large  portion  of  the  insurrectionary  districts,  when  he  de- 
clared slavery  abolished  in  them  all.  But  the  war  being  over,  those 
who  had  succeeded  in  re-establishing  the  authority  of  the  Federal 
government  were  not  content  to  permit  this  great  act  of  emancipa- 
tion to  rest  on  the  actual  results  of  the  contest  or  the  proclamation 
of  the  Executive,  both  of  which  might  have  been  questioned  in  after 
times,  and  they  determined  to  place  this  main  and  most  valuable 
result  in  the  Constitution  of  the  restored  Union  as  one  of  its  funda- 
mental articles.  Hence  the  thirteenth  article  of  amendment  of  that 
instrument."  Slaughter-House  Cases,  (1872)  16  Wall.  (U.  S.)  68. 


ment. 


30  CITIZENSHIP 


Chapter  claimed  that  twenty-seven  of  the  thirty-six  States 
'  had,  by  their  legislatures,  ratified  this  amendment. 
This  included  ratification  by  the  legislatures  of  the 
States  of  Virginia,  Louisiana,  Tennessee,  Arkansas, 
South  Carolina,  Alabama,  North  Carolina,  and 
Georgia,  all  of  which  States  had  attempted  to  se- 
cede, and  were  completely  within  the  control  of  the 
Federal  military  power  at  the  date  of  their  alleged 
ratification  of  this  amendment.  It  has  since  been 
claimed  that  they  were  under  duress  at  the  time  of 
their  alleged  ratifications,  but  the  Supreme  Court  of 
the  United  States,  in  the  case  of  White  v.  Hart?  con- 
sidered and  disposed  of  this  plea  of  duress,  as  it  re- 
lated to  the  State  of  Georgia,  in  a  way  so  effectual 
that  it  need  not  be  further  referred  to.1 
Satufed  ^ne  ne£r°  having  thus  been  emancipated  by  the 

negro.  p0wer  Of  war?  an(j  j^g  status  changed  from  that  of  a 
slave  to  a  freeman,  it  was  proposed,  for  reasons  sat- 
isfactory to  the  dominant  party,  to  alter  his.  civil  and 
political  status  as  it  had  been  defined  by  the  case  of 
Dred  Scott  v.  Sandford.  Accordingly,  the  Congress 
of  the  iUnited  States,  on  January  16,  1866,  proposed 
to  the  legislatures  of  the  several  States  the  follow- 
ing amendment  to  the  Constitution : 

9  13  Wall.  646. 

1  The  power  exercised  in  putting  down  the  late  rebellion  is  given 
expressly  by  the  Constitution  to  Congress.  That  body  made  the 
laws  and  the  President  executed  them.  The  granted  power  carried 
with  it  not  only  the  right  to  use  the  requisite  means,  but  it  reached 
further  and  carried  with  it  also  authority  to  guard  against  the  re- 
newal of  the  conflict,  and  to  remedy  the  evils  arising  from  it  in 
so  far  as  that  could  be  effected  by  appropriate  legislation.  At  no 
time  were  the  rebellious  States  out  of  the  pale  of  the  Union.  Their 
rights  under  the  Constitution  were  suspended,  but  not  destroyed. 
Their  constitutional  duties  and  obligation  were  unaffected  and  re- 
mained the  same.  White  v.  Hart,  (1871)  13  Wall.  (U.  S.)  651. 


CITIZENSHIP  31 


"ARTICLE  XIV. 

"  SECTION  1.    All  persons  born  or  naturalized  in  the  United 
States,  and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the  The  XIV 
United  States  and  of  the  State  wherein  they  reside.     No  State   ment. 
shall  make  or  enforce  any  law  which  shall  abridge  the  privileges 
or  immunities  of  citizens  of  the  United  States;  nor  shall  any 
State  deprive  any  person  of  life,  liberty,  or  property,  without 
due  process  of  law;  nor  deny  to  any  person  within  its  jurisdic- 
tion the  equal  protection  of  the  laws."  2 

The  amendment  contains  three  other  sections, 
but  none  of  them  refer  to  citizenship. 

July  21,  1868,  by  a  joint  resolution  of  Congress, 
the  Fourteenth  Amendment  was  declared  to  have  mSftnd 
been  adopted.    Not  only  did  it  work  a  revolution  in 
the  citizenship  of  the  negro  race,  but  its  effect  upon 
United  States  citizenship,  upon  the  citizenship  of 

2  Among  the  first  acts  of  legislation  adopted  by  several  of  the 
States  in  the  legislative  bodies  which  claimed  to  be  in  their  normal 
relations  with  the  Federal  government,  were  laws  which  imposed 
upon  the  colored  race  onerous  disabilities  and  burdens,  and  curtailed 
their  rights  in  the  pursuit  of  life,  liberty,  and  property  to  such  an 
extent  that  their  freedom  was  of  little  value,  while  they  had  lost 
the  protection  which  they  had  received  from  their  former  owners 
from  motives  both  of  interest  and  humanity.  .  .  .  These  circum- 
stances, whatever  of  falsehood  or  misconception  may  have  been  min- 
gled with  their  presentation,  forced  upon  the  statesmen  who  had 
conducted  the  Federal  government  in  safety  through  the  crisis  of 
the  rebellion,  and  who  supposed  that  by  the  thirteenth  article  of 
amendment  they  had  secured  the  result  of  their  labors,  the  convic- 
tion that  something  more  was  necessary  in  the  way  of  constitutional 
protection  to  the  unfortunate  race  who  had  suffered  so  much.  They 
accordingly  passed  through  Congress  the  proposition  for  the  four- 
teenth amendment,  and  they  declined  to  treat  as  restored  to  their  full 
participation  in  the  government  of  the  Union  the  States  which  had 
been  in  insurrection,  until  they  ratified  that  article  by  a  formal 
vote  of  their  legislative  bodies.  Slaughter-House  Cases,  (1872)  16 
Wall.  (U.  S.)  70. 


32 


CITIZENSHIP 


Chapter  States,  upon  the  status  of  every  class  of  people  in 
the  United  States,  and  upon  the  relations  between 
the  .United  States  and  the  States,  has  given  rise  to 
more  discussion,  and  been  the  subject  of  more  de- 
cisions, than  any  other  part  of  the  Federal  Constitu- 
tion.3 The  Supreme  Court  of  the  United  States 
alone  has,  in  a  period  of  thirty-five  years,  rendered 
about  three  hundred  decisions  on  questions  arising 
upon  this  amendment. 

To  discuss  those  decisions  at  length  is  impossible 
within  the  limits  of  any  one  volume.  Many  of  them 
relate  to  laws  abridging  the  privileges  and  immuni- 
ties of  citizens ;  many  to  what  constitutes  due  process 
of  law ;  many  to  the  denial  of  the  equal  protection  of 
the  laws.  A  few,  defining  the  reasons  which  led  to 
the  adoption  of  the  amendment,  and  the  effects  of  the 
amendment  upon  the  rights  of  citizens,  will  suffice 
in  this  chapter,  while  others  will  be  considered  when 
we  come  to  discuss  the  method  by  which  this  denned 
citizenship  may  be  acquired  or  protected. 

In  the  Slaughter-House  Cases*  which  were  the 
first  to  arise  under  this  amendment,  and  in  which 
opinions  of  unsurpassed  ability  were  rendered,  it  is 
said:  "This  clause  declares  that  persons  may  be 
citizens  of  the  United  States  without  regard  to  their 
citizenship  of  a  particular  State,  and  it  overturns  the 
Dred  Scott  decision  by  making  all  persons  born  with- 
in the  United  States  and  subject  to  its  jurisdiction 
citizens  of  the  United  States." 


S  laughter- 
House 
Cases. 


3  See  the  exhaustive  collection  of  authorities  in  Vol.  9,  Federal 
Statutes,  Annotated. 

*  Slaughter-House  Cases,  (1872)  16  Wall.  (U.  S.)  73;  to  same 
effect  see  Elk  v.  Wilkins,  (1884)  112  U.  S.  101;  U.  S.  V.  Wong  Kim 
Ark,  (1898)  169  U.  S.  676. 


CITIZENSHIP  33 


And  in  the  case  of  U.  S.  v.  Wong  Kim  Ark,5  it  is  Chapter 
again  said:  "The  Fourteenth  Amendment  of  the  L 
Constitution,  in  the  declaration  that  'all  persons  ^Jg^im 
born  or  naturalized  in  the  United  States,  and  subject  Ark- 
to  the  jurisdiction  thereof,  are  citizens  of  the  United 
States  and  of  the  State  wherein  they  reside/  con- 
templates two  sources  of  citizenship,  and  two  only: 
birth  and  naturalization.  Citizenship  by  naturali- 
zation can  only  be  acquired  by  naturalization  under 
the  authority  and  in  the  forms  of  law.  But  citizen- 
ship by  birth  is  established  by  the  mere  fact  of  birth 
under  the  circumstances  defined  in  the  Constitution. 
Every  person  born  in  the  United  States,  and  subject 
to  the  jurisdiction  thereof,  becomes  at  once  a  citizen 
of  the  United  States,  and  needs  no  naturalization." 
"The  real  object  of  the  Fourteenth  Amendment 
of  the  Constitution,  in  qualifying  the  words,  'All 
persons  born  in  the  United  States,'  by  the  addition, 
'and  subject  to  the  jurisdiction  thereof,7  would  ap- 
pear to  have  been  to  exclude  by  the  fewest  and  fittest 
words  (besides  children  of  members  of  the  Indian 
tribes,  standing  in  a  peculiar  relation  to  the  national 
government,  unknown  to  the  common  law),  the  two 
classes  of  cases  —  children  born  of  alien  enemies  in 
hostile  occupation,  and  children  of  diplomatic  repre- 
sentatives of  a  foreign  state  —  both  of  which,  as  has 
already  been  shown,  by  the  law  of  England,  and  by 
our  own  law,  from  the  time  of  the  first  settlement  of 
the  English  colonies  in  America,  had  been  recognized 
exceptions  to  the  fundamental  rule  of  citizenship  by 
birth  within  the  country." 


.  S.  v.  Wong  Kim  Ark,  (1898)   169  U.  S.  682. 


34  CITIZENSHIP 


Chapter    Qualified  Citizenship  in  Territorial  and  Acquired 
L     /  Possessions. 

Eecent  events,  the  result  of  which  was  not  fore- 
seen, have  created  an  entirely  new  and  unprecedented 
citizenship  in  the  United  States.  It  is  the  limited 
and  rudimentary  citizenship  of  the  inhabitants  of 
our  newly  acquired  territory  in  Alaska,  Porto  Eico, 
the  Philippine  and  the  Ladrone  Islands,  and  in 
Hawaii.  The  status  of  those  citizens  is  the  result  of 
changed  conditions  in  the  territory  which  they  in- 
habit. The  oldest  of  these  possessions  is  Alaska, 
purchased  by  the  United  States  from  Eussia,  and 
governed  as  a  Territory.  The  latest  expression  of 
the  Supreme  Court  of  the  United  States,  defining  the 
status  of  Alaskan  citizenship,  is  in  an  opinion  deliv- 
ered April  10,  1905.6 

In  April,  1898,  the  United  States  declared  war 

acquired. 

against  the  Kingdom  of  Spain,  in  a  quarrel  between 
the  two  nations  concerning  the  government  by  Spain 
of  the  island  of  Cuba,  a  Spanish  possession.  In 
May,  1898,  the  naval  forces  of  the  United  States  in- 
vaded the  Philippine  Islands,  another  Spanish  pos- 
session, soon  followed  by  the  land  forces  of  the 
United  States.  In  July,  1898,  the  military  forces  of 
the  United  States  invaded  the  island  of  Porto  Eico, 
another  Spanish  possession.  By  a  protocol  dated 
August  12, 1898,7  hostilities  were  suspended  between 
the  United  States  and  Spain,  upon  the  understand- 
ing that  Spain  would  cede  to  the  United  States  the 
island  of  Porto  Eico,  and  other  islands  under  Span- 

«  Rassmussen  v.  U.  S.,    (1905)    197  U.  S.  516 
7  U.  S.  Stat.  at  L.,  Vol.  30,  p.  1742. 


CITIZENSHIP  35 


ish  sovereignty  in  the  West  Indies,  also  an  island  in 
the  Ladrones  to  be  selected  by  the  United  States. 

By  a  treaty  dated  December  10,  1898,8  Spain  ac-  Treaties 
tually  ceded  to  the  United  States  the  island  of  Porto 
JRico,  and  the  other  islands  under  Spanish  sover- 
eignty in  the  West  Indies,  and  the  island  of  Guam 
in  the  Ladrone  group,  and  by  the  same  treaty  she 
ceded  to  the  United  States  the  archipelago  known 
as  the  Philippine  Islands,  by  boundaries.  Provision 
was  made  in  the  treaty  for  the  protection  of  Spanish 
subjects,  natives  of  the  peninsula  residing  in  the 
ceded  territory,  for  the  protection  of  the  religion 
of  the  inhabitants  of  the  territories  ceded,  and  for 
the  protection  of  certain  civil  rights.  By  a  treaty 
dated  November  7,  1900,9  Spain  ceded  all  islands  be- 
longing to  the  Philippine  archipelago,  lying  outside 
the  lines  described  in  the  prior  treaty,  particularly 
the  islands  of  Sulu  and  Sibitu. 

By  a  protocol  dated  March  29,  1900,1  the  period 
fixed  by  the  former  treaty  for  Spanish  subjects  to 
declare  their  intention  to  retain  their  Spanish  na- 
tionality was  extended  six  months. 

Thus,  within  a  year  from  the  outbreak  of  the  war 
with  Spain,  the  United  States  acquired  all  the  above- 
named  islands,  with  many  millions  of  inhabitants, 
and  undertook  by  Article  IX  of  the  Treaty  of  De- 
cember 10,  1898,  that  "the  civil  rights  and  political 
status  of  the  native  inhabitants  of  the  territories 
ceded  to  the  United  States  shall  be  determined  by 
the  Congress." 

While  these  events  were  transpiring  the  Eepublic 

s  See  U.  S.  Stat.  at  L.,  Vol.  30,  p.  1755,  7  Fed.  Stat.  Annot.  814. 
»  U.  S.  Stat.  at  Large,  Vol.  31,  p.  1942,  7  Fed.  Stat.  Annot.  819. 
i  U.  S.  Stat.  at  Large,  Vol.  31,  p.  1882,  7  Fed.  Stat.  Annot.  818. 


•^;^>? 
ITY 


36  CITIZENSHIP 


Chapter    of  Hawaii,  whose  government  extended  over  a  group 
.  of  islands  in  the  Pacific,  known  as  the  Hawaiian 

Islands,  formally  signified  its  consent,  in  the  manner 
provided  by  its  constitution,  to  cede  absolutely  and 
without  reservation  to  the  United  States  of  America, 
all  rights  of  sovereignty  of  whatsoever  kind  in  and 
over  the  Hawaiian  Islands  or  their  dependencies,  and 
also  to  cede  and  transfer  to  the  United  States  the  ab- 
solute fee  and  ownership  of  all  public,  government, 
or  crown  lands,  public  buildings  or  edifices,  ports, 
harbors,  military  equipment,  and  all  other  public 
property  of  every  kind  and  description  belonging  to 
the  government  of  the  Hawaiian  Islands,  together 
with  every  right  and  appurtenance  thereunto  apper- 
taining. This  proposition  was  presented  to  the  Con- 
gress of  the  United  States,  and  accepted  July  7, 1898, 
by  a  joint  resolution,2  which  provided  that  "said 
cession  is  accepted,  ratified,  and  confirmed,  and  that 
the  said  Hawaiian  Islands  and  their  dependencies 
be,  and  they  are  hereby,  annexed  as  a  part  of  the 
territory  of  the  United  States  and  are  subject  to  the 
sovereign  dominion  thereof,  and  that  all  and  singu- 
lar the  property  and  rights  hereinbefore  mentioned 
are  vested  in  the  United  States  of  America." 
Senfp'f  It  was  further  provided  that  "until  Congress 

shall  provide  for  the  government  of  such  islands  all 
the  civil,  judicial,  and  military  powers  exercised  by 
the  officers  of  the  existing  government  in  said  islands 
shall  be  vested  in  such  person  or  persons,  and  shall 
be  exercised  in  such  manner,  as  the  President  of  the 
United  States  shall  direct;  and  the  President  shall 
have  power  to  remove  said  officers  and  fill  the  vacan- 

2  U.  S.  Stat.  at  Large,  Vol.  30,  p.  750,  3  Fed.  Stat.  Annot.  183. 


CITIZENSHIP  37 


cies  so  occasioned."  The  municipal  legislation  of 
the  Hawaiian  Islands,  subject  to  certain  limitations, 
was  to  remain  in  force  until  the  Congress  of  the 
United  States  should  otherwise  determine.  The 
United  States  government  assumed  the  debts  of 
the  islands,  not  to  exceed  $4,000,000.  An  act  was 
passed  forbidding  the  immigration  of  Chinese.  The 
President  was  required  to  appoint  five  commission- 
ers to  recommend  to  Congress  such  legislation  con- 
cerning the  Hawaiian  Islands  as  they  should  deem 
necessary  or  proper.3 

Thus  it  will  be  seen,  that  in  the  year  1898  the 
United  States  gained  an  immense  accession  of  citi- 
zenship in  territory  lying  far  beyond  its  original 
confines,  inhabited  by  people  altogether  different 
from  those  who  had  constituted  its  citizens  thereto- 
fore. It  will  also  be  seen,  both  in  the  joint  resolu- 
tion accepting  sovereignty  over  the  Hawaiian 
Islands,  and  in  the  treaty  accepting  the  cession  of 
the  Spanish  possessions,  that  the  United  States 
assumed  complete  authority  to  govern  all  the  newly 
acquired  territory. 

Let  us  now  consider  what  government  it  has,  up 
to  the  present  time,  provided  for  these  several  pos- 
sessions, an  examination  essential  to  an  understand- 
ing of  the  grade  and  quality  of  citizenship  which 
their  inhabitants  enjoy. 

Hawaii  —  Its  Government. 

Congress,  by  an  Act  approved  April  30,  1900,4 
passed  an  Act  to  provide  a  government  for  the  Terri- 

3  See  title  "  Hawaiian  Islands,"  in  Vol.  3,  Fed.  Stat.  Annot.  181. 
*U.  S.  Stat.  at  Large,  Vol.  31,  p.  141,  3  Fed.  Stat.  Annot.  186. 


38  CITIZENSHIP 


Chapter   tory  of  Hawaii.    In  Chapter  I,  Section  4,  of  that  Act, 

'. —  it  was  set  forth  that  all  persons  who  were  citizens  of 

the  Eepublic  of  Hawaii  on  August  12,  1898,  are 
hereby  declared  to  be  citizens  of  the  United  States 
and  citizens  of  the  Territory  of  Hawaii;  and  all 
citizens  of  the  United  States  residing  in  the  Ha- 
waiian Islands,  and  who  were  residing  there  on  or 
since  August  12,  1898,  and  all  citizens  of  the  United 
States  who  shall  hereafter  reside  in  the  Territory  of 
Hawaii  for  one  year,  shall  be  citizens  of  the  Terri- 
tory of  Hawaii.  The  fifth  section  declared  that  the 
Constitution  and  laws  of  the  United  States,  except 
such  as  are  locally  inapplicable,  shall  have  the  same 
force  and  effect  in  the  Territory  as  elsewhere  in  the 
United  States,  with  certain  specific  exceptions. 

The  Act  provides  for  a  legislature  composed  of  a 
senate  and  a  house  of  representatives,  for  general 
elections,  and  that  all  legislative  proceedings  shall 
be  conducted  in  the  English  language.  It  confers  a 
large  degree  of  legislative  power  upon  the  legisla- 
ture, and  extends  a  broad  franchise  to  all  inhabitants 
who  are  citizens  of  the  United  States  and  have  re- 
sided in  the  Territory  not  less  than  a  year,  twenty- 
one  years  old,  registered,  and  able  to  speak,  read,  and 
write  the  English  or  the  Hawaiian  language.  It  pro- 
vides, however,  for  the  appointment  by  the  President 
of  the  {United  States  of  a  governor,  secretary,  chief 
justice  and  justices  of  the  Supreme  Court,  and 
judges  of  the  circuit  courts ;  and  that  the  governor 
shall  nominate,  and,  by  and  with  the  advice  and  con- 
sent of  the  senate  of  the  Territory  appoint,  an  attor- 
ney-general, treasurer,  commissioner  of  public  lands, 
commissioner  of  agriculture  and  forestry,  super- 


CITIZENSHIP  39 

intendent  of  public  works,  superintendent  of  public 
instruction,  auditor,  and  other  officers;  but  all  the 
officers  appointed  under  the  Act  are  to  be  citizens  of 
the  Territory.  By  the  terms  of  the  Act,  Section  85, 
the  delegate  to  the  House  of  Representatives  of  the 
United  States,  to  serve  during  each  Congress,  shall 
be  elected  by  the  voters  qualified  to  vote  for  members 
of  the  house  of  representatives  of  the  legislature; 
such  delegate  shall  possess  the  qualifications  neces- 
sary for  membership  of  the  senate  of  the  legisla- 
ture of  Hawaii.  Every  delegate  shall  have  a  seat 
in  the  United  States  House  of  Eepresentatives,  with 
the  right  of  debate  but  not  of  voting. 

From  the  foregoing  recital  of  the  Constitution 
and  government  of  Hawaii,  it  will  be  seen  that  the 
government  organized  in  that  Territory  is  very  sim- 
ilar in  its  general  characteristics  to  that  organized 
in  the  Northwest  Territory  by  the  Ordinance  of 
1787. 

Porto  Rico. 

Congress  proceeded  April  12, 1900,  to  enact  a  civil  ofheAprCn 
government  for  the  island  of  Porto  Eico  and  adja- 
cent islands.5  The  Act  provides  that  all  inhabitants 
continuing  to  reside  in  Porto  Eico,  who  were  Spanish 
subjects  on  the  llth  day  of  April,  1899,  and  then  re- 
sided in  Porto  Eico,  and  their  children  born  subse- 
quent thereto,  shall  be  deemed  and  held  to  be  citizens 
of  Porto  Eico,  and  as  such  entitled  to  the  protec- 
tion of  the  United  States,  and  they,  together  with  such 
citizens  of  the  United  States  as  may  reside  in  Porto 
Eico,  shall  constitute  a  body  politic  under  the  name 
of  The  People  of  Porto  Eico,  with  governmental 

BU.  S.  Stat.  at  Large,  Vol.  31,  p.  77,  etc.,  5  Fed.  Stat.  Annot.  761. 


40  CITIZENSHIP 


Chapter  powers  as  conferred  in  the  Act.  ^By  Section  14,  the 
statutory  laws  of  the  United  States  not  locally  inap- 
plicable, except  as  otherwise  provided,  and  except 
the  internal-revenue  laws,  are  to  have  the  same 
force  and  effect  in  Porto  Eico  as  in  the  United 
States.  Section  16  provides  that  all  judicial  pro- 
cess shall  run  in  the  name  of  the  United  States,  to 
wit,  the  President  of  the  United  States,  and  that 
all  penal  prosecutions  in  the  local  courts  shall  be 
conducted  in  the  name  and  under  the  authority  of 
the  people  of  Porto  Eico,  and  that  all  officials  author- 
ized by  the  Act  shall  take  an  oath  to  support  the 
Constitution  of  the  United  States  and  the  laws  of 
Porto  Eico. 

The  legislative  authority  provided  by  the  Act 

iialp0prtoer  was  empowered  to  amend,  alter,  modify,  or  repeal 
any  law  or  ordinance,  civil  or  criminal.  Congress, 
however,  retained  the  right  in  the  President  to 
appoint  a  governor  and  other  executive  officers 
and  members  of  an  executive  council.  The  leg- 
islative body  consists  of  the  executive  coun- 
cil and  the  house  of  delegates,  and  is  known 
as  the  Legislative  Assembly  of  Porto  Eico;  the 
house  of  delegates  comprises  thirty-five  members 
elected  biennially  by  the  qualified  voters  from  the 
seven  districts  into  which  the  island  is  divided.  All 
citizens  of  Porto  Eico,  bona  fide  residents  for  a  year, 
and  possessed  of  other  qualifications  under  the  laws 
and  military  orders,  are  allowed  to  vote.  The  legis- 
lative authority  extends  to  all  matters  of  a  legisla- 
tive character  not  locally  inapplicable,  including  the 
power  to  create,  consolidate,  and  reorganize  the  mu- 
nicipalities, and  to  amend,  alter,  modify,  or  repeal  all 


CITIZENSHIP 


laws  and  ordinances  of  Porto  Eico,  not  inconsistent 
with  the  provisions  of  the  bill.  A  judicial  power  is 
created,  but  the  judges  are  appointed  by  the  Presi- 
dent of  the  United  States,  and  Porto  Eico  is  made 
a  judicial  district  for  the  purposes  of  Federal  juris- 
diction, with  appeal  to  the  Supreme  Court  of  the 
United  States.  The  writ  of  habeas  corpus  is  ex- 
tended to  the  Territory,  and  a  commission  was 
appointed  to  compile  and  revise  the  laws  of  Porto 
Eico  and  report  a  permanent  plan  of  government 
within  a  year. 

By  acts  passed  in  1902,  a  cadet  at  West  Point  and 
a  midshipman  at  Annapolis  are  authorized  from 
the  Territory  of  Porto  Eico,6  and  citizens  of  Porto 
Eico  are  made  eligible  for  enlistment  in  the  Porto 
Eico  regiment,  with  the  right  to  order  them  outside 
the  service  of  the  island. 

By  a  proclamation  dated  July  25, 1901,  the  Presi- 
dent declared  that  the  civil  government  of  Porto 
Eico  had  been  organized  in  accordance  with  the  pro- 
visions of  the  Act  of  Congress.7 

From  the  foregoing,  it  will  be  seen  that  the  gov-  5>£toe  °f 
ernment  of  Porto  Eico  is  even  more  like  that  pro-  ?rnmnen?.°v" 
vided  for  the  Northwest  Territory,  than  the  govern- 
ment of  Hawaii,  as  the  legislative  body  of  Porto 
Eico  consists  of  an  executive  council  appointed  by 
the  President  to  act  in  conjunction  with  the  house  of 
delegates /but  the  acknowledgment  that  the  inhab- 
itants of  Porto  Eico  are  citizens  of  the  United  States 
is  expressly  withheld  in  the  declaration  of  the  Act  of 
Congress  of  April  12,  1900,  Section  7, /which  says 

«U.  S.  Stat.  at  Large,  Vol.  32,  Part  1,  pp.  1011,  1198,  934. 
7  U.  S.  Stat.  at  Large,  Vol.  32,  Part,  2,  p.  1983. 


42  CITIZENSHIP 


Chapter    that  all  inhabitants  continuing  to  reside  therein  who 

! —  were  Spanish  subjects  on  the  llth  day  of  April,  1899, 

and  then  resided  in  Porto  Eico,  and  their  children 
born  subsequent  thereto,  should  be  deemed  and  held 
to  be  citizens  of  Porto  Eico  and  as  such  entitled  to 
the  protection  of  the  United  States,  and  they,  to- 
gether with  such  citizens  of  the  United  States  as 
may  reside  in  Porto  Eico,  shall  constitute  a  body 
politic  under  the  name  of  The  People  of  Porto  Eico. 

Guam. 

No  special  provision  of  law  seems  to  have  been 
enacted  concerning  the  inhabitants  of  the  island  of 
Guam,  or  defining  the  status  of  their  citizenship. 

The   Philippine   Islands. 

Mhaerchct2°f  The  Philippine  Islands  occupy  an  immense  space 
upon  the  map.  Their  inhabitants  consist  of  a  vast 
number  of  tribes,  varying  in  intelligence  and  civili- 
zation. By  an  Act  of  Congress  passed  March  2, 
1901,  the  President  of  the  United  States  was  author- 
ized to  establish  a  temporary  civil  government  over 
the  Philippine  Islands,8  in  the  following  language: 
"All  military,  civil,  and  judicial  powers  necessary  to 
govern  the  Philippine  Islands,  acquired  from  Spain 
by  the  treaties  concluded  at  Paris  on  the  10th  day  of 
December,  1898,  and  at  Washington  on  the  7th  day 
of  November,  1900,  shall,  until  otherwise  provided 
by  Congress,  be  vested  in  such  person  and  persons, 
and  shall  be  exercised  in  such  manner,  as  the  Presi- 
dent of  the  United  States  shall  direct,  for  the  es- 
tablishment of  civil  government  and  for  maintaining 

s  See  U.  S.  Stat.  at  Large,  Vol.  31,  p.  910,  5  Fed.  Stat.  Annot. 
711. 


CITIZENSHIP  43 


and  protecting  the  inhabitants  of  said  islands  in  the 
free  enjoyment  of  their  liberty,  property,  and  re- 
ligion, "  etc. 

Pursuant  to  the  powers  vested  in  him,  the  Presi-  £entrn~ 
dent  of  the  United  States  created  a  civil  commission, 


which  has,  from  that  time  until  the  present,  con-  «onmi£ 
tinned  to  administer  the  affairs  of  the  Philippine 
Islands. 

By  an  Act  passed  July  1,  1902,  Congress9  ap- 
proved and  ratified  and  confirmed  the  action  of  the 
President  in  creating  the  Philippine  Commission, 
and  in  authorizing  the  commission  to  exercise  the 
powers  of  government  to  the  extent  and  in  the  man- 
ner and  form  and  subject  to  the  regulation  and  con- 
trol set  forth  in  the  instructions  of  the  President  to 
the  Philippine  Commission  dated  April  7,  1900;  in 
creating  the  offices  of  civil  governor  and  vice-gov- 
ernor of  the  Philippine  Islands,  and  authorizing 
said  civil  governor  and  vice-governor  to  exercise  the 
powers  of  government  to  the  extent  and  in  the  man- 
ner and  form  set  forth  in  the  executive  order  dated 
June  21,  1901,  and  in  establishing  four  executive  de- 
partments of  government  in  the  islands,  as  set  forth 
in  the  Act  of  the  Philippine  Commission. 

It  is  unnecessary  to  go  into  the  details  of  the 
organization  of  that  commission.  It  is  sufficient  to 
say  that  it  was  organized  for  the  purpose  of  securing 
to  the  inhabitants  of  the  Philippine  Islands  a  stable 
and  safe  government  by  the  United  States  until  such 
time  as  its  people  shall  be  deemed  capable  of  a  larger 
degree  of  self-government. 

»  U.  S.  Stat.  at  Large,  Vol.  32,  Part  1,  p.  691,  5  Fed.  Stat.  Annot. 
718. 


44  CITIZENSHIP 


Congress  by  the  Act  of  July  1,  1902,  Section  5,1 
provided  a  series  of  safeguards  for  the  protection 
The  Act  of  of  life  and  liberty  of  the  inhabitants  of  the  Philip- 
Sis  in  pines.  The  rights  guaranteed  by  that  section  are 
ippiifes!1"  those  set  forth  in  the  Declaration  of  Independence, 
modified  by  the  condition  of  the  inhabitants. 
Among  those  rights  are,  the  guarantee  that  no  per- 
son shall  be  deprived  of  life,  liberty  or  property, 
without  due  process  of  law;  the  right  of  the  criminal 
to  be  heard  by  himself  and  counsel  and  to  demand 
the  nature  and  cause  of  the  accusation;  the  guar- 
antee that  no  person  shall  be  twice  put  in  jeopardy 
for  the  same  offense  or  be  compelled  to  testify 
against  himself ;  the  right  to  bail ;  that  no  law  shall 
be  passed  impairing  the  obligation  of  contracts; 
that  there  shall  be  no  imprisonment  for  debt;  that 
the  writ  of  habeas  corpus  shall  not  be  suspended; 
that  no  ex  post  facto  law  or  bill  of  attainder  shall  be 
passed ;  in  fact,  all  the  civil  rights  guaranteed  by  the 
Constitution  of  the  United  States. 

?wiS?pincf  Section  4  2  of  the  Act  declares  that  all  inhabitants 
of  the  Philippine  Islands  continuing  to  reside  there- 
in who  were  Spanish  subjects  on  the  llth  day  of 
April,  1899,  and  then  resided  in  said  islands,  and 
their  children  born  subsequent  thereto,  shall  be 
deemed  and  held  to  be  citizens  of  the  Philippine 
Islands  and  as  such  entitled  to  the  protection  of  the 
United  States.  It  expressly  fails  to  declare  that  they 
shall  be  deemed  citizens  of  the  United  States. 
Section  6  3  provides  for  a  census. 

i  5  Fed.  Stat.  Annot.  719.         2  5  Fed.  Stat.  Annot.  719. 
85  Fed.  Stat.  Annot.  720. 


CITIZENSHIP  45 


Section  7  4  provides  for  a  general  election  two    chapter 
years  after  the  completion  of  the  census,  on  certain  _  _ 


conditions,  to  choose  delegates  to  a  popular  assem- 
bly,  and  that  after  such  assembly  shall  have  convened  ly.  assem 
and  organized,  the  legislative  power  theretofore 
conferred  on  the  Philippine  Commission  in  all  that 
part  of  the  islands  not  inhabited  by  Moros  and  non- 
Christian  tribes  should  be  vested  in  a  legislature 
consisting  of  two  houses,  the  Philippine  Commis- 
sion and  the  Philippine  Assembly.  The  qualifica- 
tion of  electors  shall  be  the  same  as  now  provided 
by  law  in  the  case  of  electors  in  municipal  elections. 
The  act  contains  sundry  other  provisions  looking 
to  an  enjoyment  of  the  rights  of  citizenship  for  the 
inhabitants  of  the  islands. 

By  the  same  Act  a  Bureau  of  Insular  Affairs  of  ?nu£faur  of 
the  War  Department  is  created.  The  business  as- 
signed to  that  bureau  embraces  all  matters  relating 
to  the  civil  government  in  the  island  possessions  of 
the  United  States,  subject  to  the  jurisdiction  of  the 
War  Department. 

Under  the  foregoing  acts,  a  most  thorough  and  Senf^en- 
efficient    government   has    been   provided    for    the  S^bflip. 
Philippine  Islands.     There  is  little  doubt  that  the 
inhabitants  of  Hawaii,  Porto  Rico,  and  the  Philip- 
pines are  better  governed  than  they  were  before, 
and  with  the  humane  and  gentle  tyranny  to  which 
the  inhabitants  of  the  Philippines  are  subjected  by 
the  United  States,  they  are  doubtless  being  stim- 
ulated to  a  degree  of  intelligent  conception  of  our 
ideals   of  liberty   and   self-government,   and   to    a 

*5  Fed.  Stat.  Annot.  720. 


46  CITIZENSHIP 


Chapter    standard  of  civilization  much  higher  than  they  ever 
L       heretofore  conceived. 

Citizenship  in  Our  Insular  Possessions. 
These  ends  may  be  invoked  to  justify  the  means 
employed,  but  four  facts  concerning  the  inhabitants 
of  Porto  Eico,  the  Philippines,  and  Guam  remain 
undisputed,  as  follows: 

1.  That  the  United  States  commands  their  alle- 
giance. 

2.  That  they  never  did  voluntarily  assume  that 
allegiance. 

3.  That  the  qualified  citizenship,  the  restricted 
liberty,  and  the  limited  right  of  self-government 
which  they  possess,  are  of  a  nature  far  inferior  to 
those  enjoyed  by  the  inhabitants  of  the  continent  of 
North  America  who  are  subject  to  the  jurisdiction 
of  the  United  States. 

4.  That  both  the  qualified  citizenship  conferred 
upon  them  and  the  form  of  government  imposed 
upon  them  are  different  from  any  citizenship  or  gov- 
ernment that  was  contemplated  by  the  framers  of 
the  Constitution  of  the  United  States,  when  it  was 
proposed  and  adopted. 

As  a  legal  proposition,  there  can  be  little  doubt 
of  the  power  of  the  United  States  to  acquire  all  these 
possessions,  and  of  the  obligation  resting  upon  it 
to  govern  them  wisely  and  judiciously  after  acquir- 
ing them. 

Tlie  Supreme  Court  of  the  United  States  has  had 
coSrt.me  occasion  to  consider  and  define  the  status  of  these 
islands.  A  careful  study  of  the  case  of  DeLima  v. 
Bidwell?  and  the  group  of  cases  in  the  same 

B  (1901)    182  U.  S.  1. 


CITIZENSHIP  47 


volume  collectively  designated  as  the  "insular  tariff    Chapter 

cases, "    is    recommended    to    the    student   who    is  ! — 

particularly  interested  in  this  subject.  The  argu- 
ments and  the  decisions  rendered  place  the  reader 
in  full  possession  of  the  facts  and  circumstances 
under  which  these  possessions  were  acquired,  the 
status  of  the  people  as  regards  the  United  States, 
the  nature  of  the  governments  under  which  their 
affairs  are  administered,  and  the  constitutional  pro- 
visions, civil  and  military,  relied  upon  to  justify  and 
sustain  the  United  States  in  the  government  it  has 
established.  Not  the  least  surprising  result  of  such 
a  study  will  be  the  discovery  of  a  great  divergence 
of  opinion  among  the  learned  and  able  lawyers  who 
compose  the  Supreme  Court  of  the  United  States, 
concerning  the  ground  on  which  the  right  of  the 
United  States  to  govern  these  people  rests,  and  the 
status  of  their  inhabitants  as  citizens  of  the  govern- 
ment of  the  United  States.  By  far  the  ablest  and 
most  concise  statement  of  the  law,  justifying  the 
acquisition  of  these  islands  and  sustaining  the  au- 
thority of  Congress  to  define  and  determine  the 
status  of  their  inhabitants,  is  found  in  the  concur- 
ring opinion  of  Mr.  Justice  Gray,  in  the  case  of 
Downes  v.  Bidwell* 


The  power  granted  to  the  United  States  to  make  fh°e1 


Source     of 
the     power 

war  and  make  treaties,  unquestionably  involved  the  and  agov-ire 

crn. 

right  to  acquire  these  territories  by  conquest,  and 
the  power  to  govern  them  seems  to  be  a  necessary 
incident  of  the  power  to  acquire  them.7  The  semi- 

e  (1901)    182  U.   S.   345. 

t  Sere  v.  Pitot,  (1810)  6  Cranch  (U.  S.)  332;  American  Ins.  Co. 
v.  356  Bales  Cotton,  (1828)  1  Pet.  (U.  S.)  511;  Dred  Scott  v.  Sand- 
ford,  (1856)  19  How.  (U.  S.)  393;  Stewart  v.  Kahn,  (1870)  11 


48  CITIZENSHIP 


Chapter  barbarous  inhabitants  of  the  Philippines,  at  least, 
'  have  everything  to  gain  and  nothing  to  lose,  from  the 
protection  and  qualified  citizenship  accorded  to 
them  by  the  American  Eepublic,  but  the  wisdom  of 
assumption  by  the  United  States  of  this  class  of 
guardianship  over  outlying  territory  has  given  rise 
to  much  debate. 

dons0" and  ^e  territorial  government  heretofore  exercised 
arguments..  ^y  ^  United  States  over  national  territory  con- 
tiguous to  the  States  was  a  temporary  government, 
It  was  only  intended  to  last,  and  only  lasted,  until 
the  new  settlers,  flowing  from  the  States  into  the 
organized  Territories,  attained  such  numbers  and 
other  requisites  as  justified  their  organization  into 
new  States.  In  such  cases  the  transition  from  the 
territorial  condition  into  Statehood  was  easy,  rapid, 
and  sure.  The  difference  in  the  nature  and  quality 
of  the  citizenship  between  inhabitants  of  Territories 
and  those  of  States  was  only  a  difference  in  name, 
and  State  citizenship  only  brought  with  it  a  few 
added  political  rights.  But  there  can  be  no  such 
progressive  development  and  rapid  growth  to  in- 
dependence of  Federal  supervision  in  these  insular 
acquisitions.  Possession  of  them  involves  the  neces- 
sary strengthening  of  our  naval  power,  and  an  in- 
creased danger  of  foreign  complications.  Their  in- 
habitants are  of  an  alien  stock  which  has  never 
comprehended  our  ideals  of  government,  or  had  any 
conception  of  the  principles  of  republican  liberty  or 

Wall.  (U.  S.)  507;  Shively  v.  Bowlby,  (1894)  152  U.  S.  48;  De 
Lima  v.  Bidwell,  (1901)  182  U.  S.  196;  Dowries  v.  Bidwell,  (1901) 
182  U.  S.  250;  U.  S.  v.  Nelson,  (1886)  29  Fed.  Rep.  204,  (1887) 
30  Fed.  Rep.  115;  Gardiner  v.  Miller,  (1874)  47  Cal.  575;  Franklin 
v.  U.  S.,  (1867)  1  Colo.  38. 


CITIZENSHIP  49 

democratic  self-rule,  such  as  we  have  understood  and    Chapter 
practiced.     If  they  are  ever  able  to  comprehend  - 

them,  it  will  only  be  after  generations,  if  not  cen- 
turies, of  paternal  rule  and  education  to  elevate  them 
to  our  standard.  It  is  doubtful  if  they  will  ever  as- 
similate to  our  institutions  and  whether  they  will  not 
always  need  a  strong  government.  It  is  question- 
able whether  the  injury  to  our  home  government 
from  the  ill  effects  on  its  simplicity  resulting  from 
this  practice  of  strong  government  upon  our  alien 
subjects  will  not  be  greater  than  any  benefit  which 
we  are  likely  to  bestow  on  them.  These  are  the 
arguments  which  have  arisen  against  the  inaugura- 
tion of  this  new  insular  policy  and  the  adoption  of 
this  surprising  new  citizenship.  In  a  treatise  like 
this,  it  is  sufficient  to  state  the  argument  without 
attempting  to  draw  conclusions.  What  these  in- 
sular governments  may  some  day  become,  the  future 
alone  will  disclose.  At  present,  they  are  substan- 
tially citizens  without  a  voice  in  their  government, 
and  subjects  without  a  king.  They  are  free,  pro- 
vided they  conform  to  the  standard  of  right  and 
wrong  fixed  for  them  by  a  well-meaning  and  benevo- 
lent despot,  fixed  from  a  viewpoint  altogether  differ- 
ent from  their  own. 

The  United  States  had  its  birth  in  the  protest  of 
Henry  against  the  dictation  of  foreign  rulers.  Sum- 
ming up  and  denouncing  the  usurpations  of  King 
George,  he  said:  "If  this  be  treason,  make  the  most 
of  it."  The  nation  which  sprung  into  being  upon 
this  issue  has  now  become  the  foreign  ruler  of  an 
alien  people  by  conquest.  It  has  assumed  to  revo- 
lutionize their  mode  of  existence,  mental,  moral, 

4 


50  CITIZENSHIP 


Chapter    physical,  and  political.    In  its  determination  to  bear 

L__  the  torch  of  liberty  to  the  remotest  people  of  the 

earth,  it  has  marched  among  them,  planted  its  stand- 
ard, proclaimed  its  rule,  and  answered  their  every 
protest  with  the  announcement, ' '  This  is  liberty,  and 
you  must  make  the  most  of  it."  History  will  record 
the  success  or  failure  of  the  experiment. 

This  completes  the  enumeration  of  the  different 
kinds  of  citizenship  existing  under  our  system  of 
government. 


CHAPTER  H. 

HOW  AMEBICAN  CITIZENSHIP  MAY  BE  ACQUIBED O.  IN 

THE  NATION. 

By  Birth.        />/*^* 

PURSUANT    to    the    provisions    of    the    XIV 
Amendment  to  the  Constitution  of  the  United 
States,  the  Federal  statutes  provide  as  fol- 
lows: "All  persons  born  in  the  United  States  and 
not  subject  to  any  foreign  power,  excluding  Indians 
not  taxed,  are  declared  to  be  citizens  of  the  United 
States.  "* 

This  language  has  been  held  to  include  a  person  citizens 

by    birth. 

born  in  the  United  States  of  parents  of  Chinese  de- 
scent and  subjects  of  the  Emperor  of  China,  they  be- 
ing at  the  time  of  his  birth  domiciled  residents,  en- 
gaged in  business  in  the  United  States.2  It  has  also 
been  held  to  embrace  the  half-breed  children  of  a 

iRev.  Stat.  U.  S.,  Sec.  1992,  1  Fed.  Stat.  Annot.  785;  The 
Slaughter-House  Cases,  (1872)  83  U.  S.  36;  In  re  Rodriguez,  (1897) 
81  Fed.  Rep.  353. 

"  While  this  amendment  .  .  .  was  intended  primarily  for  the 
benefit  of  the  negro  race,  it  also  confers  the  right  of  citizenship 
upon  persons  of  all  other  races,  white,  yellow,  or  red,  born  or  natu- 
ralized in  the  United  States,  and  *  subject  to  the  jurisdiction  thereof.' 
The  language  has  been  held  to  embrace  even  Chinese,  to  whom  the 
laws  of  naturalization  do  not  extend."  In  re  Rodriguez,  (1897) 
81  Fed.  Rep.  353. 

2U.  S.  v.  Wong  Kim  Ark,  (1898)  169  U.  S.  649;  Citizenship, 
etc.,  (1884)  21  Fed.  Rep.  905;  Lee  Sing  Far  v.  U.  S.,  (C.  C.  A.  1899) 
94  Fed.  Rep.  834;  In  re  Yung  Sing  Hee,  (1888)  36  Fed.  Rep.  437; 
In  re  Giovanna,  (1899)  93  Fed.  Rep.  659;  In  re  Wy  Shing,  (1888) 
36  Fed.  Rep.  553;  Ex  p.  Chin  King,  (1888)  35  Fed.  Rep.  354. 

51 


52  CITIZENSHIP 


white  father  and  an  Indian  mother  living  apart  from 
her  tribe,  born  within  the  United  States,  reared  and 
educated  as  other  children  of  citizens ; 3  and  even 
under  the  XIII  Amendment  colored  persons  were 
held  to  be  citizens.4  But  an  Indian  born  a  member  of 
one  of  the  Indian  tribes  within  the  United  States 
does  not,  merely  by  reason  of  his  birth  in  the  United 
States  and  his  separation  from  his  tribe  and  resi- 
dence among  white  citizens,  become  a  citizen.5  A 
negro  born  in  slavery  and  afterwards  becoming  a 

3U.  S.  v.  Hadley,  (1900)  99  Fed.  Rep.  437;  U.  S.  V.  Ward, 
(1890)  42  Fed.  Rep.  320;  U.  S.  v.  Higgins,  (1901)  110  Fed.  Rep. 
609,  distinguishing  U.  S.  v.  Higgins,  (1900)  103  Fed.  Rep.  348.  See 
also  Farrell  v.  U.  S.,  (C.  C.  A.  1901)  110  Fed.  Rep.  942;  Ex  p.  Rey- 
nolds, (1879)  5  Dill.  (U.  S.)  394. 

*  Hall  v.  De  Cuir,  (1877)  95  U.  S.  509.  See  also  U.  S.  v.  Rhodes, 
(1866)  1  Abb.  (U.  S.)  28,  27  Fed.  Gas.  No.  16,151. 

5  Elk  v.  Wilkins,  (1884)  112  U.  S.  94;  U.  S.  v.  Osborne,  (1880) 
6  Sawy.  (U.  S.)  406;  U.  S.  v.  Boyd,  (C.  C.  A.  1897)  83  Fed.  Rep. 
547. 

"  Indians  born  within  the  territorial  limits  of  the  United  States, 
members  of,  and  owing  immediate  allegiance  to,  one  of  the  Indian 
tribes  (an  alien,  though  dependent,  power),  although  in  a  geo- 
graphical sense  born  in  the  United  States,  are  no  more  *  born  in 
the  United  States  and  subject  to  the  jurisdiction  thereof,'  within  the 
meaning  of  the  first  section  of  the  Fourteenth  Amendment,  than 
the  children  of  subjects  of  any  foreign  government  born  within  the 
domain  of  that  government,  or  the  children  born  within  the  United 
States,  of  ambassadors  or  other  public  ministers  of  foreign  na- 
tions. .  .  .  Such  Indians,  then,  not  being  citizens  by  birth,  can 
only  become  citizens  in  the  second  way  mentioned  in  the  Fourteenth 
Amendment,  by  being  '  naturalized  in  the  United  States/  by  or  under 
some  treaty  or  statute."  Elk  v.  Wilkins,  (1884)  112  U.  S.  94. 

By  Act  of  Congress,  of  Feb.  8,  1887,  every  Indian  born  within 
the  territorial  limits  of  the  United  States  to  whom  allotments  of  land 
shall  have  been  made  under  the  provisions  of  the  act,  or  under  any 
law  or  treaty,  and  every  Indian  born  within  the  territorial  limits 
of  the  United  States  who  has  voluntarily  taken  up,  within  said 
limits,  his  residence  separate  and  apart  from  any  tribe  of  Indians 
therein,  and  has  adopted  the  habits  of  civilized  life,  is  declared  to 
be  a  citizen  of  the  United  States  and  entitled  to  all  the  rights,  privi- 
leges, and  immunities  of  such  citizens.  U.  S.  v.  Kopp,  (1901)  110 


CITIZENSHIP  53 

citizen  of  the  Cherokee  Nation  has  been  held  to  be   Chapter 
not  an  Indian.6  IL 

By  special  enactment,  all  persons  born  in  the 
country  formerly  known  as  the  Territory  of  Oregon 
and  subject  to  the  jurisdiction  of  the  United  States 
on  the  18th  day  of  May,  1872,  are  declared  citizens 
of  the  United  States.7 

By  Naturalization. 

We  have  already  seen  that  the  power  to  enact  a 
uniform  system  of  naturalization  laws  was  among 
the  first  bestowed  upon  Congress  by  the  Constitu- 
tion. 

Naturalization  is  defined  to  be  the  act  of  adopting  Kat- may 
a  foreigner  and  clothing  him  with  the  privileges  of 
a  native  citizen.8     The  power  of  naturalization  is 
vested   exclusively   in    Congress   by   the   Constitu- 

Fed.  Rep.  160;  In  re  Celestine,  (1902)  114  Fed.  Rep.  553;  State  V. 
Denoyer,  (1897)  6  N.  Dak.  586.  See  also  U.  S.  v.  Boyd,  (C.  C.  A. 
1897)  83  Fed.  Rep.  547. 

e  Alberty  V.  U.  S.,  (1896)  162  U.  S.  499. 

The  term  "  Indian "  is  one  descriptive  of  race,  and  therefore 
men  of  other  races  who  are  adopted  into  an  Indian  tribe  do  not 
thereby  become  Indians.  They  may  by  such  adoption  become  en- 
titled to  certain  privileges  in  the  tribe,  and  make  themselves  amen- 
able to  its  laws  and  usages.  Yet  they  are  not  Indians.  Respon- 
sibility to  the  laws  of  the  United  States  cannot  thus  be  thrown  off, 
and  a  right  acquired  to  be  treated  by  the  government  and  its  officers 
as  if  they  were  Indians  born.  U.  S.  v.  Rogers,  (1846)  4  How.  (U. 
S.)  567.  See  also  Westmoreland  v.  U.  S.,  (1895)  155  U.  S.  545; 
Roff  v.  Burney,  (1897)  168  U.  S.  218;  Raymond  v.  Raymond,  (C. 
C.  A.  1897)  83  Fed.  Rep.  721. 

7  Rev.  Stat.  U.  S.,  Sec.  1995,  1  Fed.  Stat.  Annot.  788. 

sBouvier's  Law  Dictionary.  Osborn  v.  U.  S.  Bank,  (1824)  9 
Wheat.  (U.  S.)  827;  Boyd  V.  Thayer,  (1892)  143  U.  S.  162;  Post- 
master at  New  Orleans,  (1858)  9  Op.  Atty.-Gen.,  259;  Minneapolis  V. 
Reum,  (1893)  12  U.  S.  App.  446;  Am.  &  Eng.  Encyc.  of  Law  (2d 
ed.),  Vol.  6,  p.  19. 


54  CITIZENSHIP 


Chapter  tion,  and  cannot  be  exercised  by  the  State.9  Al- 
! —  though  the  power  to  enact  naturalization  laws  ex- 
isted from  the  time  the  Constitution  went  into  effect 
in  1789,  the  earliest  Act  of  Congress  on  the  subject 
of  naturalization  was  passed  April  14,  1802,  thir- 
teen years  after  the  Constitution  went  into  effect. 
Under  the  last  named  Act  and  sundry  amendments, 
admission  to  citizenship  of  three  principal  classes  of 
persons  was  provided  for,  to  wit: 

First,  aliens  who  had  resided  for  a  certain  time 
within  the  limits  and  under  the  jurisdiction  of  the 
United  States,  to  be  naturalized  individually  by  pro- 
ceedings in  a  court  of  record.1 

Second,  the  children  of  persons  so  naturalized 
dwelling  within  the  United  States  and  being  under 

»U.  S.  v.  Villato,  (1797)  2  Dall.  (Pa.)  373;  Thurlow  v.  Massa- 
chusetts, (1847)  5  How.  (U.  S.)  504;  Smith  v.  Turner,  (1849)  7 
How.  (U.  S.)  283;  Chiracs.  Chirac,  (1817)  2  Wheat.  (U.  S.)  269; 
Collet  v.  Collet,  (1792)  2  Dall.  (U.  S.)  294;  U.  S.  v.  Wong  Kim 
Ark,  (1898)  169  U.  S.  649. 

That  the  exercise  of  the  power  to  pass  naturalization  laws  by 
the  State  governments  is  incompatible  with  the  grant  of  a  power 
to  Congress  to  pass  uniform  laws  on  that  subject,  is  obvious,  from 
the  consideration  that  the  former  would  be  dissimilar  and  frequently 
contradictory;  whereas  the  system  is  directed  to  be  uniform,  which 
can  only  be  rendered  so  by  the  exclusive  power  in  one  body  to  form 
them.  Golden  v.  Prince,  (1814)  3  Wash.  (U.  S.)  313. 

Our  foreign  intercourse  being  exclusively  committed  to  the  gen- 
eral government,  it  is  peculiarly  their  province  to  determine  who 
are  entitled  to  the  privileges  of  American  citizens,  and  the  protec- 
tion of  American  government.  And  the  citizens  of  any  one  State 
being  entitled  by  the  Constitution  to  enjoy  the  rights  of  citizenship 
in  every  other  State,  that  fact  creates  an  interest  in  this  particular 
in  each  other's  acts,  which  does  not  exist  with  regard  to  their  bank- 
rupt laws;  since  State  acts  of  naturalization  would  thus  be  extra- 
territorial in  their  operation,  and  have  an  influence  on  the  most 
vital  interests  of  other  States.  Ogden  V.  Saunders,  (1827)  12 
Wheat.  (U.  S.)  277. 

i  See  U.  S.  Rev.  Stat.,  Title  XXX,  Sec.  2165,  5  Fed.  Stat.  Annot. 
200. 


CITIZENSHIP  55 

the  age  of  twenty-one  at  the  time  of  such  natural!- 
zation.2 

Third,  foreign-born  children  of  American  citizens 
coming  within  the  definitions  prescribed  by  Con- 
gress.3 

Length  of  Residence  Necessary. 

As  early  as  1813  Congress  enacted  that  an  alien, 
to  be  entitled  to  admission  as  a  citizen,  must  have 
resided  within  the  United  States  for  a  continuous 
term  of  five  years.4  This  general  provision  is  modi- 
fied by  several  special  enactments,  as  follows : 

An  alien  who  has  enlisted  and  has  been  honorably 
discharged  from  the  regular  volunteer  forces  of  the 
army  of  the  United  States  is  not  required  to  prove 
more  than  one  year's  residence.5 

A  seaman  being  a  foreigner  who  declares  his  in- 
tention of  becoming  a  citizen  and  then  serves  three 
years  aboard  a  merchant  vessel  of  the  United  States 
is  entitled  to  be  admitted.6 

An  alien  may  be  admitted  to  become  a  citizen  of 
the  United  States  in  the  following  manner,  and  not 
otherwise  :7 

First,  a  preliminary  declaration  of  intention  must  t?0enlaof  "in- 
be  made.    It  must  be  made  at  least  two  years  prior 
to  his  admission  to  citizenship.    It  must  be  made 
under  oath  before  a  circuit  or  district  court  of  the 
(United  States  or  a  district  or  supreme  court  of  the 

2  See  U.  S.  Rev.  Stat.,  Title  XXX,  Sec.  2172,  5  Fed.  Stat.  Annot. 
209. 

a  U.  S.  Rev.  Stat.,  Title  XXX,  Sec.  1993,  1  Fed.  Stat.  Annot.  786. 
*U.  S.  Rev.  Stat.,  Title  XXX,  Sec.  2170,  5  Fed.  Stat.  Annot.  208. 
5  U.  S.  Rev.  Stat.,  Sec.  2166,  5  Fed.  Stat.  Annot.  205. 
eU.  S.  Rev.  Stat.,  Sec.  2174,  5  Fed.  Stat.  Annot.  210. 
TU.  S.  Rev.  Stat.,  Sec.  2165,  5  Fed.  Stat.  Annot.  200. 


56  CITIZENSHIP 


Chapter  Territories,  or  a  court  of  record  of  any  of  the  States 
'  having  common-law  jurisdiction,8  and  a  seal  and  a 
clerk.9  The  declaration  must  state  that  it  is  the 
bona  fide  intention  of  the  applicant  to  become  a  citi- 
zen of  the  United  States,  and  to  renounce  forever  all 
allegiance  and  fidelity  to  any  foreign  prince,  poten- 
tate, state,  or  sovereignty,  particularly  by  name,  to 
the  prince,  potentate,  state,  or  sovereignty  of  which 

8  Congress  has  power  to  confer  and  the  State  courts  authority 
to  accept  and  exercise  the  power  to  naturalize  aliens.  Levin  v. 
U.  S.,  (C.  C.  A.  1904)  128  Fed.  Rep.  826;  Croesus  Min,  etc.,  Co.  v. 
Colorado  Land,  etc.,  Co.,  (1884)  19  Fed.  Rep.  78.  A  State  court 
is  the  judicial  agency  of  the  Federal  Government  in  such  proceed- 
ings. People  v.  Sweetman,  (Supm.  Ct.  Gen.  T.  1857,  3  Park.  Crim. 
(N.  Y.)  374;  In  the  Matter  of  Christern,  (1878)  43  N.  Y.  Super. 
Ct.  523. 

Congress  cannot  constrain  a  State  court  to  exercise  this  juris- 
diction, and  the  State  legislatures  may,  if  they  see  fit,  limit  or  re- 
strain the  exercise  of  this  jurisdiction  by  the  State  courts.  Rush- 
worth  v.  Judges,  (1895)  58  N.  J.  L.  97;  Ex  p.  Knowles,  (1855)  5 
Cal.  300;  Matter  of  Ramsden,  (N.  Y.  Super.  Ct.  Spec.  T.  1857)  13 
How.  Pr.  (N.  Y.)  429. 

Concerning  the  meaning  of  "  having  common-law  jurisdiction " 
see  Levin  v.  U.  S.,  (C.  C.  A.  1904)  128  Fed.  Rep.  826;  U.  S.  v.  Power, 
<1877)  14  Blatchf.  (U.  S.)  223;  Gladhill,  Petitioner,  (1844)  8  Met. 
<Mass.)  168;  Citizenship  —  Levy's  Case,  (1874)  14  Op.  Atty.-Gen. 
509;  Morgan  v.  Dudley,  (1857)  18  B.  Mon.  (Ky.)  693;  U.  S.  v.  Leh- 
man, (1899)  39  Fed.  Rep.  49;  Ex  p.  Tweedy,  (1884)  22  Fed.  Rep. 
84;  Matter  of  Conner,  (1870)  39  Cal.  98;  People  v.  McGowan, 
(1875)  77  111.  649;  People  v.  Sweetman,  (Supm.  Ct.  Gen.  T.  1857) 
3  Park.  Crim.  (N.  Y.)  358;  Ex  p.  McKenzie,  (1897)  51  S.  Car.  244. 

"  If  the  court  may  exercise  any  part  of  that  jurisdiction  it  is 
within  the  language  of  the  statute  and  within  its  meaning  as  well." 
U.  S.  v.  Power,  (1877)  14  Blatchf.  (U.  S.)  223. 

s  As  to  a  court  without  a  clerk,  see  Dean,  Petitioner,  (1891) 
S3  Me.  489;  Ex  p.  Cregg,  (1854)  2  Curt.  (U.  S.)  98;  State  v. 
Whittemore,  (1870)  50  N.  H.  245;  State  v.  Webster,  (1878)  7 
^Teb.  471;  Gladhill,  Petitioner,  (1844)  8  Met.  (Mass.)  171. 

The  court  must  have  a  clerk  distinct  from  the  judge;  not  neces- 
sarily an  officer  denominated  clerk,  but  a  permanent  recording  offi- 
cer, charged  with  the  duty  of  keeping  a  true  record  of  the  doings 
of  the  court  and  afterwards  of  authenticating  them.  Dean,  Peti- 
tioner, (1891)  83  Me.  489. 


CITIZENSHIP  57 


the  alien  may  be  at  the  time  a  citizen  or  subject.1    Chapter 
By    an    amendment    enacted    February    1,    1876,2       IL 


the  preliminary  declaration  of  intention  may  be 
made  before  the  clerk  of  any  of  the  courts  named 
above.3 

A  preliminary  declaration,  however,  is  not  re- 
quired  in  the  following  cases  :  iSa?Je' 

1.  The  widow  and  children  of  an  alien  who  has  tlon.ara" 
made  his  preliminary  declaration  and  died  before 

he  was  actually  naturalized,  are  declared  to  be  citi- 
zens upon  taking  the  oaths  prescribed  by  law.4 

2.  By  an  act  passed  May  26,  1824,5  an  alien 
being    under   twenty-one    years    of    age    who    has 
resided    in    the    United    States    three    years    next 
preceding  his  arrival  at  age,  and  who  has  continued 
to  reside  therein  to  the  time  he  makes  application 
to  be  admitted  a  citizen,  may,  after  he  attains  the 
age  of  twenty-one  and  after  he  has  resided  five  years 

1  Omission  of  name  not  fatal.     Ex  p.  Smith,    (1847)    8  Blackf. 
(Ind.)    395. 

"  An  applicant  for  naturalization  is  a  suitor,  who,  by  his  peti- 
tion, institutes  a  proceeding  in  a  court  of  justice  for  the  judicial 
determination  of  an  asserted  right.  Every  such  petition  must,  of 
course,  allege  the  existence  of  all  facts,  and  the  fulfilment  of  all 
conditions,  upon  the  existence  and  fulfilment  of  which  the  statutes 
which  confer  the  right  asserted  have  made  it  dependent."  In  re 
Bodek,  (1894)  63  Fed.  Rep.  813,  3  Pa.  Bist.  725. 

2  19  Stat.  L.,  c.  5,  p.  2,  5  Fed.  Stat.  Annot.  205. 

s/n  re  Langtry,  (1887)  31  Fed.  Eep.  879;  Andres  v.  Arnold, 
(1889)  77  Mich.  87. 

The  last  named  case  discusses  the  location  of  the  place  at  which 
the  clerk  may  take  the  declaration.  See  also  Butterworth,  Appli- 
cant, (1846)  1  Woodb.  &  M.  (U.  S.)  323. 

Proof  of  declaration  is  made  by  production  of  the  record  or  by 
due  certification  thereof.  In  re  Fronascone,  (1900)  99  Fed.  Rep.  48; 
State  v.  Barrett,  (1889)  40  Minn.  65;  Berry  v.  Hull,  (1892)  6  N. 
Mex.  643. 

*  Rev.  Stat.  U.  S.,  Sec.  2168,  5  Fed.  Stat.  Annot.  205. 

5  Rev.  Stat.  U.  S.,  Sec.  2167,  5  Fed.  Stat.  Annot.  206. 


58  CITIZENSHIP 


Chapter    within  the  United  States,  including  the  three  years  of 
• —  his  minority,  be  admitted  without  preliminary  decla- 
ration.6 

3.  By  an  Act  passed  July  17,  1862,7  an  alien  of 
the  age  of  twenty-one  years  and  upwards,  who  has 
enlisted  or  may  enlist  in  the  armies  of  the  United 
States,8  and  has  been  honorably  discharged,  shall  be 
admitted  to  become  a  citizen  of  the  United  States 
upon  his  petition,  without  any  previous  declaration 
of  his  intention.9 

4.  By   an   Act   passed   July   26,    1894,1    aliens 
over  twenty-one  years  of  age,  honorably  discharged 
from  the  navy  or  marine  corps  after  five  consecutive 
years'  service  in  the  navy,  or  one  enlistment  in  the 
marine  corps,  may  be  admitted  without  any  previous 
declaration. 

oath  —  Second,  he  shall,  at  the  time  of  his  application  to 

contents. 

be  admitted,  declare  on  oath  before  some  one  of  the 
ourts  specified: 

(a)  That  he  will  support  the  Constitution  of  the 
[United  States. 

(b)  That  he  renounces  and  abjures  all  allegiance 
and  fidelity  to  any  foreign  prince,  etc., 

(c)  Particularly,  by  name,  the  prince  or  poten- 
tate of  whom  he  was  subject. 

eContzen  v.  U.  S.,  (1900)  179  U.  S.  195. 

If  he  has  lived  in  the  United  States  five  years  when  he  attains 
the  age  of  twenty-one  years,  he  may  be  admitted  to  citizenship  the 
next  day.  Schutz's  Petition,  (1886)  64  N.  H.  241. 

7  U.  S.  Stat.  L.,  Vol.  12,  p.  597.  This  is  now  Sec.  2166  of  the  Re- 
vised Statutes.  See  5  Fed.  Stat.  Annot.  205. 

sin  re  Bailey,  (1872)  2  Sawy.  (U.  S.)  200;  Berry  v.  Hull, 
(1892)  6  N.  Mex.  643. 

» In  re  Bailey,  (1872)  2  Sawy.  (U.  S.)  200;  Berry  V.  Hull, 
(1892)  6  N.  Mex.  643. 

a  U.  S.  Stat.  L.,  Vol.  28,  p.  124,  5  Fed.  Stat.  Annot.  206. 


CITIZENSHIP 


59 


(d)     The  proceedings  shall  be  recorded  by  the    Chapter 


clerk. 

Third,  it  shall  be  made  to  appear  to  the  court: 

(a)  That  he  has  resided  in  the  United  States 
five  years  at  least. 

(b)  Within  State  or  Territory  one  year  at  least. 

(c)  That  during  that  time  he  has  behaved  as  a 
man  of  good  moral  character.2 

(d)  That  he  is  attached  to  the  principles  of  the 
Constitution  of  the  United  States,  and  well  disposed 
to  the  good  order  and  happiness  of  the  same.3 

(e)  But  the  oath  of  the  applicant  does  not  prove 
his  residence.4 


2  The  fact  that  he  cannot  read  or  write  does  not  make  him  ineli- 
gible, if  he  is  shown  to  be  of  good  moral  character.    In  re  Rodri- 
guez, (1897)  81  Fed.  Rep.  355.     But  a  perjurer  is  ineligible.     In  re 
Spenser,   (1878)   5  Sawy.   (U.  S.)    195;  and  a  Socialist  was  rejected. 
Ex  p.  Sauer,  (1891)  81  Fed.  Rep.  355,  note. 

"  Upon  general  principles  it  would  seem  that  whatever  is  forbid- 
den by  the  law  of  the  land  ought  to  be  considered,  for  the  time  be- 
ing, immoral,  within  the  purview  of  this  statute."  In  re  Spenser, 
(1878)  5  Sawy.  (U.  S.)  195. 

3  But  a  foreigner  ignorant  of  the  English  language  and  who  did 
not  know  the  name  of  the  President,  but  thought  that  Washington 
was   President,   was  held   ineligible.    In  re  Kanaka  Nian,    (1889) 
6  Utah  259. 

*  See  5  Fed.  Stat.  Annot.,  p.  202,  and  the  following  cases  cited : 
In  re  Bodek,  (1894)  63  Fed.  Rep.  814;  Lanz  v.  Randall,  (1876)  4 
Dill.  (U.  S.)  425;  Baird  v.  Byrne,  (1854)  3  Wall.  Jr.  (C.  C.)  1; 
Johnson  v.  U.  S.,  (1893)  29  Ct.  Cl.  1;  State  v.  Barrett,  (1889)  40 

Minn.  65;  Matter  of  ,  (1845)  7  Hill  (N.  Y.)  137;  In  re 

Spenser,  (1878)  5  Sawy.  (U.  S.)  195;  Ex  p.  Sauer,  (1891)  81  Fed. 
Rep.  355,  note;  Matter  of  Clark,  (1854)  18  Barb.  (N.  Y.)  446; 
Citizenship  —  Levy's  Case,  (1874)  14  Op.  Atty.-Gen.  509;  Matter  of 
Christern,  (1878)  43  N.  Y.  Super.  Ct.  523;  McCarthy  v.  Marsh, 

(1851)  5  N.  Y.  263;  State  v.  Macdonald,  (1877)  24  Minn.  48;  Banks 
v.  Walker,  (1848)  3  Barb.  Ch.  (N.  Y.)  438;  Spratt  v.  Spratt 

(1830)  4  Pet.  (U.  S.)  406;  Green  v.  Salas,  (1887)  31  Fed.  Rep. 
106;  Stark  v.  Chesapeake  Ins.  Co.,  (1813)  7  Cranch  (U.  S.)  420; 


60 


CITIZENSHIP 


Provisions 
concern- 
ing chil- 
dren. 


Fourth,  in  case  the  alien  applying  to  be  ad- 
mitted to  citizenship  has  borne  any  hereditary  title 
or  been  of  any  of  the  orders  of  nobility  in  the  king- 
dom or  state  from  which  he  came,  he  shall,  in  addi- 
tion to  the  above  requisites,  make  an  express  renun- 
ciation of  his  title  or  order  of  nobility  in  the  court 
to  which  his  application  is  made,  and  his  renuncia- 
tion shall  be  recorded  in  the  court. 

The  fifth  and  sixth  clauses  of  the  Naturalization 
Law  may  be  omitted,  as  they  simply  declared  certain 
persons  residing  in  the  United  States  prior  to  the 
29th  of  January,  1795,  and  between  June  18,  1798, 
and  June  18,  1812,  to  be  citizens,  and  are  no  longer 
of  any  practical  importance. 

The  Naturalization  Law  further  provides  con- 
cerning children,  as  follows: 

1.     Children  under  age  when  their  parents  were 


The  Acorn,  (1870)  2  Abb.  (U.  S.)  434;  People  v.  McGowan,  (1875) 
77  111.  644;  Ritchie  v.  Putnam,  (1835)  13  Wend.  (N.  Y.)  524;  Com. 
v.  Towles,  (1835)  5  Leigh  (Va.)  743;  McDaniel  v.  Richards,  (1821) 
1  McCord  L.  (S.  Car.)  187;  State  v.  Hoeflinger,  (1874)  35  Wis.  393; 
Vaux  v.  Nesbit,  (1826)  1  McCord  Eq.  (S.  Car.)  352;  In  re  McCop- 
pin,  (1869)  5  Sawy.  (U.  S.)  630;  Contzen  v.  U.  S.,  (1900)  179  U.  S. 
191;  Boyd  v.  Thayer,  (1892)  143  U.  S.  178;  Blight  v.  Rochester, 
(1822)  7  Wheat.  (U.  S.)  546;  Strickley  v.  Hill,  (1900)  22  Utah 
268;  Hogan  v.  Kurtz,  (1876)  94  U.  S.  773;  Kreitz  v.  Behrensmeyer, 
(1888)  125  111.  141;  People  v.  McNally,  (Supm.  Ct.  Spec.  T.  1880) 
59  How.  Pr.  (N.  Y.)  500;  Sasportas  v.  De  la  Motta,  (1858)  10  Rich. 
Eq.  (S.  Car.)  38;  Nalle  v.  Fenwick,  (1826)  4  Rand.  (Va.)  585; 
Miller  v.  Reinhart,  (1855)  18  Ga.  239;  Belcher  v.  Farren,  (1891) 
89  Cal.  78;  Matter  of  Desty,  (N.  Y.  Super.  Ct.  Spec.  T.  1880)  8  Abb. 
N.  Gas.  (N.  Y.)  250;  Prentice  v.  Miller,  (1890)  82  Cal.  570;  Slade 
v.  Minor,  (1817)  2  Cranch  (C.  C.)  139;  Gagnon  v.  U.  S.,  (1902) 
38  Ct.  Cl.  10;  Dryden  v.  Swinburne,  (1882)  20  W.  Va.  89;  Naviga- 
tion Laws,  (1883)  17  Op.  Atty.-Gen.  534;  In  re  An  Alien,  (1842)  1 
Fed.  Cas.  No.  201a;  Anonymous,  (1846)  4  N.  Y.  Leg.  Obs.  98,  1 
Fed.  Cas.  No.  465;  U.  S.  v.  Norsch,  (1890)  42  Fed.  Rep.  417;  U.  S. 
v.  Grottkau,  (1887)  30  Fed.  Rep.  672. 


CITIZENSHIP 


duly  naturalized  under  any  law  of  the  United  States ;    Chapter 
or, 

2.  Children  whose  parents  previous  to  the  pass- 
ing of  the  United  States  naturalization  laws  became 
citizens  of  any  State ;  or, 

3.  Children  born  out  of  the  limits  and  jurisdic- 
tion of  the  United  States,  of  persons  who  are  or 
have  been  citizens  of  the  United  States  — 

All  the  above  are  declared  to  be  citizens  of  the 
United  States. 

b.      IN   A  STATE. 

By  Birth. 

Every  State  in  the  Union  has  enacted,  either  in 
its  constitution  or  in  its  statutes,  that  all  persons 
born  in  the  State  shall  be  deemed  citizens  of  the 
State.  The  language  is  not  identical,  but  it  will  be 
found  substantially  the  same  by  reference  to  the  con- 
stitutions and  statutes  of  the  several  States. 

By  State  Enactments. 

All  the  States  have,  in  one  form  or  another,  pro- 
vided that  all  persons  born  in  any  other  State  of  the 
Union  who  may  be  or  become  residents  of  the  State 
enacting  the  law,  and  all  aliens  naturalized  under 
the  laws  of  the  United  States  who  may  be  or  be- 
come residents  of  the  State,  shall  be  citizens  of  the 
State.  A  particular  inspection  of  the  laws  of  each 
State  will  be  necessary  to  ascertain  the  precise  lan- 
guage in  which  this  general  principle  is  declared, 
and  the  length  of  residence  requisite  in  any  particu- 
lar State  to  acquire  citizenship  therein. 


62  CITIZENSHIP 


By  Federal  Enactments. 

fhe  XIV  Amendment  to  the  Constitution  of  the 
United  States  declares  that  all  persons  born  or  natu- 
ralized in  the  United  States  and  subject  to  the  juris- 
diction thereof  are  citizens  of  the  State  wherein  they 
reside.  The  question  what  residence  entitles  a  na- 
tive or  a  naturalized  citizen  to  all  the  privileges  of 
citizenship  in  a  particular  State  is  generally  deter- 
mined by  some  State  enactment  prescribing  the 
length  of  residence  necessary  to  entitle  a  person  to 
all  the  privileges  of  State  citizenship.  Until  the  en- 
actment of  the  XIV  Amendment,  no  attempt  was  ever 
made  by  the  Federal  government  to  define  or  limit 
the  rights  of  citizenship  in  any  State. 

C.      OUTSIDE   THE   NATION   OE  STATES. 

-  .  We  have  already  seen  that  under  certain  Federal 

born     cml- 

cfti?ensf.  statutes  the  widow  and  children  of  an  alien  who  has 
made  his  preliminary  declaration,  and  died  without 
being  actually  naturalized,  have  certain  inchoate 
rights  of  citizenship  which  they  may  make  perfect 
upon  taking  the  oaths  prescribed  by  law,  even  though 
they  have  not  been  within  the  limits  of  the  nation  or 
of  the  State.  So,  too,  children  born  out  of  the  limits 
and  jurisdiction  of  the  United  States,  of  persons  who 
are  citizens  of  the  United  States,  are  deemed  citi- 
zens of  the  United  States;  and  by  the  statutes  of 
many  of  the  States  they  are  also  deemed  citizens  of 
the  State  whereof  their  parents  are  citizens.  For 
example,  the  author  of  this  volume  was  born  in  Eio 
de  Janeiro,  Brazil,  in  1846,  of  parents  who  were  citi- 
zens of  the  United  States  and  of  the  State  of  Vir- 
ginia. By  the  terms  of  the  Federal  statutes  he  is  a 


CITIZENSHIP  63 


citizen  of  the  United  States;  and  by  the  terms  of   Chapter 

the  statutes  of  Virginia,  all  children,  wherever  born,  ! — 

whose  father,  or  if  he  be  dead  whose  mother,  was 
a  citizen  of  Virginia  at  the  time  of  the  birth  of  such 
children,  were  to  be  deemed  citizens  of  that  State. 
A  notable  instance  of  such  foreign  birth  is  George 
B.  McClellan,  the  present  mayor  of  New  York  city, 
who  was  born  in  Dresden,  Saxony.  At  the  time  of 
his  birth  his  parents  were  citizens  of  New  Jersey, 
his  father,  Capt.  George  B.  McClellan,  being  in  the 
service  of  the  United  States  abroad.  He  is  as  much 
a  citizen  of  the  United  States  and  of  the  State  of 
New  Jersey  as  if  he  had  been  born  in  Trenton,  the 
capital  of  the  State  of  New  Jersey. 

But  the  citizenship  of  children  whose  fathers 
were  citizens  is  qualified  to  this  extent:  the  rights  of 
citizenship  of  the  parent  do  not  descend  to  the  chil- 
dren if  the  parents  have  never  resided  in  the  United 
States.  Thus,  if  Mayor  George  B.  McClellan  had 
never  resided  in  the  United  States,  his  son,  George 
B.  McClellan,  third,  would  not  inherit  his  father's 
right  of  citizenship  in  the  United  States. 

d.      OF   THE  PERSONS   WHO   MAY   BE   CITIZENS. 

As  a  matter  of  course,  men  may  be  citizens,  and 
we  will  not  discuss  that  further. 

Women  may  be  citizens  as  well  as  men.5    The  Ocfitiz^omen 
statutes   of  the  United   States   expressly  provide 

« Minor  v.  Happersett,  (1874)  21  Wall.  (U.  S.)  162;  U.  S.  Stat. 
L.,  Sec.  1994,  1  Fed.  Stat.  Annot.  786;  Dorsey  v.  Brigham,  (1898) 
177  111.  250;  Kane  v.  McCarthy,  (1869)  63  N.  Car.  299. 

Since  the  extension  of  the  naturalization  laws  to  persona  of 
African  descent,  this  statutory  provision  is  applicable  to  negro  as 
well  as  white  women.  Broadis  v.  Broadis,  (1898)  86  Fed.  Rep.  951. 


64;  CITIZENSHIP 


Chapter    that  any  woman  who  is  now  or  may  hereafter  be 

^ married  to  a  citizen  of  the  United  States,  and  who 

might  herself  be  lawfully  naturalized,  shall  be 
deemed  a  citizen.  The  naturalization  laws  them- 
selves provide  6  that  the  widow  of  an  alien  who  has 
complied  with  the  first  condition  of  naturalization, 
and  died  without  being  actually  naturalized,  shall  be 
considered  a  citizen. 

The  political  status  of  the  wife  follows  that  of 
the  husband,  with  the  modification  that  there  must 
be  withdrawal  from  her  native  country,  or  equiva- 
lent act  expressive  of  her  election  to  renounce  her 
citizenship  as  a  consequence  of  her  marriage.7 
de°nntrew[ves  ^e  citizenship  acquired  by  the  wife  by  marriage 
of  citizen*  to  a  citizen  of  the  United  States  is  not  a  qualified 
or  contingent  one,  but  is  as  enduring  and  unqualified 
as  if  she  had  been  naturalized  upon  her  own  formal 
application.8  It  may  therefore  happen  that  an  alien 
may  come  to  this  country  and  become  a  citizen, 
whereby  his  wife,  who  might  herself  be  lawfully  nat- 
uralized, shall  be  deemed  a  citizen,  although  she  did 
not  come  to  the  United  States  until  after  his  death. 
His  citizenship,  in  such  case,  confers  citizenship  upon 
her.9  An  alien  woman  whose  husband  became  a 

eRev.  Stat.  U.  S.,  Sec.  2168,  5  Fed.  Stat.  Annot.  207. 

TRuckgaber  V.  Moore,   (1900)    104  Fed.  Rep.  948. 

s  Leonard  v.  Grant,  (1880)  5  Fed.  Rep.  11;  U.  S.  v.  Kellar, 
(1882)  13  Fed.  Rep.  82,  (1882)  11  Biss.  (U.  S.)  314. 

"No  law  expressly  providing  for  a  temporary  or  contingent  citi- 
zenship is  known  to  the  legislation  of  the  United  States,  and  so  un- 
usual and  singular  a  purpose  ought  not  to  be  attributed  to  Congress 
without  an  explicit  provision  to  that  effect."  Leonard  v.  Grant, 
(1880)  5  Fed.  Rep.  11. 

»  Kelly  v.  Owen,  (1868)  7  Wall.  (U.  S.)  496. 

Notwithstanding  the  letter  of  the  statute,  "  might  herself  be  law- 
fully naturalized,"  it  is  only  necessary  that  the  woman  should  be 


CITIZENSHIP  65 


naturalized  citizen  of  the  United  States,  thereby  chapter 
herself  became  a  citizen,  although  she  may  have  ' 
been  living  at  a  distance  from  her  husband  for 
years  and  may  never  have  come  into  the  United 
States  until  after  his  death.1  And  a  woman  mar- 
ried to  a  citizen  of  the  United  States  is,  by  reason 
of  her  marriage,  to  be  deemed  a  citizen,  irrespec- 
tive of  the  time  or  place  of  marriage,  and  although 
she  may  never  have  resided  in  the  United  States.2 
An  alien  widow  of  a  naturalized  citizen  of  the  United 
States,  although  she  never  resided  within  the  United 
States  during  the  lifetime  of  her  husband,  is  a  citi- 
zen of  the  United  States  and  is  entitled  to  dower  in 
his  real  estate.3  A  woman  born  in  France,  whose 
father  was  a  citizen  of  the  United  States,  and  who 
married  a  French  citizen  and  continued  after  the 
death  of  her  husband  to  reside  in  France,  is  a  citizen 
of  France  but  not  of  the  United  States.4 

Children  may  be  citizens.  They  are  citizens  by  Children- . 
birth,  and,  as  seen  above,  become  citizens  through 
the  naturalization  of  their  parents.  By  the  express 
terms  of  the  statute,  however,  the  children  born 
abroad  of  American  citizens,  whether  the  parents  be 
citizens  by  birth  or  by  naturalization,  do  not  trans- 

a  person  of  the  class  or  race  permitted  to  be  naturalized  by  exist- 
ing laws.  It  is  not  required  that  she  should  have  the  statutory 
qualifications  as  to  residence,  conduct,  and  opinions.  Being  the  wife 
of  a  citizen,  she  is  regarded  as  qualified  for  citizenship,  and  there- 
fore is  considered  a  citizen.  Leonard  v.  Grant,  (1880)  5  Fed.  Rep.  11. 

1  Headman  v.  Rose,   (1879)  63  Ga.  458. 

2  See  (1874)   14  Op.  Atty.-Gen.  402;  but  see  Ruckgaber  v.  Moore, 
(1900)   104  Fed.  Rep.  948. 

s  Burton  v.  Burton,  (1864)  1  Keyes  (N.  Y.)  359;  approved  in 
Kelly  v.  Owen,  (1868)  7  Wall.  (U.  S.)  496;  Kane  v.  McCarthy, 
(1869)  63  N.  Car.  299. 

iBerthemy's  Case,    (1866)    12  Op.  Atty.-Gen.  7. 
5 


66  CITIZENSHIP 


Chapter    mit  their  right  of  citizenship  to  their  children  unless 
IL       they  have  themselves  resided  in  the  United  States. 


6.      NATIONAL  AND  STATE  CITIZENSHIP  NOT  NECESSAEILY 
COEXISTENT. 

asesiffeenct?  ^  citizen  of  the  United  States  does  not  thereby 
citizenship,  necessarily  become  a  citizen  of  any  particular  State. 
This  distinction  is  clearly  pointed  out  in  the  Slaugh- 
ter-house Cases  cited  above.  The  XIV  Amendment 
declares  that  all  persons  born  or  naturalized  in  the 
United  States  and  subject  to  the  jurisdiction  thereof 
are  citizens  of  the  United  States  and  of  the  State 
wherein  they  reside,  but  the  amendment  does  not  at- 
tempt to  define  whal  constitutes  residence  in  States. 
Ct  might  very  well  happen,  for  example,  that  a  per- 
son had  been  naturalized  in  one  State  and  lost  his 
residence  in  that  State  by  removing  from  it,  without 
having  acquired  a  residence  in  another  State  to 
which  he  had  removed.  The  XIV  Amendment  can- 
not be  so  read  as  to  make  him  a  resident  of  any  State 
except  on  the  terms  prescribed  generally  by  the  laws 
of  that  State  for  the  acquisition  of  citizenship 
therein.5 

A  curious  anomaly  resulting  from  the  last-named 

condition  in  our  complex  system  of  national  and 

State  governments  is  found  in  the  following  state 

of  facts : 

aliens?  b7        The  Constitution  of  the  [United  States  provides 

8  "  Not  only  may  a  man  be  a  citizen  of  the  United  States  without 
being  a  citizen  of  a  State,  but  an  important  element  is  necessary  to 
convert  the  former  into  the  latter.  He  must  reside  within  the 
State  to  make  him  a  citizen  of  it,  but  it  is  only  necessary  that  he 
should  be  born  or  naturalized  in  the  United  States  to  be  a  citizen 
of  the  Union."  Slaughter-House  Cases,  (1872)  16  Wall.  (U.  S.)  36. 


CITIZENSHIP 


67 


(Art.  I,  Sec.  2)  that  the  House  of  Eepresentatives  Chapter 
shall  be  composed  of  members  chosen  every  second  IL 
year  by  the  people  of  the  several  States,  and  electors 
in  each  State  shall  have  the  qualifications  requisite 
for  electors  of  the  most  numerous  branch  of  the 
State  legislature.  The  naturalization  laws  give 
an  alien  no  political  rights  as  a  citizen  of  the  United 
States  until  he  has  been  admitted  to  citizenship.  In 
many  of  the  States  the  qualifications  for  electors  of 
the  most  numerous  branch  of  the  State  legislature 
are  bestowed  upon  aliens  who  have  made  their  pre- 
liminary declarations ;  consequently,  it  happens  that 
in  many  instances  the  persons  who  vote  for  mem- 
bers of  the  Congress  of  the  United  States  are  not 
even  citizens  of  the  United  States.  Under  this  con- 
dition, it  is  conceivable  that  in  the  different  States 
the  votes  of  aliens  to  the  United  States  might  elect 
sufficient  members  of  the  House  of  Eepresentatives 
of  the  United  States  to  control  the  action  of  the 
Congress  of  the  United  States. 


CHAPTER  III. 

OP    THE    OBLIGATIONS    AND    DUTIES    OF    THE    CITIZEN    TO 
THE  NATION  AND  THE  STATE. 

Allegiance. 

Chapter    r"pHE  word  allegiance  is  employed  to  express  the 

IIL  obligation  of  fidelity  and  obedience  due  by  the 

individual,  as  a  citizen,  to  his  government,  in 

Definition  _         . ,  . .          ,  .  „  . . 

and  tests     return  for  the  protection  he  receives  from  it. 

of  alle- 
giance. Fidelity  is  evidenced  not  only  by  obedience  to 

the  laws  of  one's  country,  and  lip-service,  but  by 
faithful  disclosure  to  the  government  of  the  prop- 
erty owned  by  the  citizen,  which,  with  that  of  other 
citizens,  is  subject l  to  the  burdens  necessary  to  sus- 
tain the  government;  by  the  payment  of  the  citizen's 
just  share  of  taxation,  and  by  responding  with  cheer- 
fulness and  alacrity  to  all  calls  lawfully  made  by 
the  government  to  bear  arms  or  render  other  per- 
sonal service  for  the  common  defense  and  for  the 
security  of  the  liberties  and  the  general  welfare  of 
his  State. 

Obedience  consists  of  respect  for,  observance 
of,  and  aid  in  maintaining,  the  laws  of  the  govern- 
ment. 

iFunk  &  Wagnalls's  Standard  Dictionary;  Carlisle  v.  U.  S., 
(1872)  16  Wall.  (U.  S.)  147;  U.  S.  Greiner,  (1861)  4  Phila.  (Pa.) 
396,  18  Leg.  Int.  (Pa.)  149,  26  Fed.  Gas.  No.  15,262;  Calvin's  Case, 
7  Coke  1;  State  v.  Hunt,  (1834)  2  Hill  L.  (S.  Car.)  1 ;  U.  S.  v. 
Greathouse,  (1863)  2  Abb.  (U.  S.)  364;  Charge  to  Grand  Jury, 
(1861)  1  Sprague  (U.  S.)  602:  Bouvier's  Law  Dictionary,  tit.  Trea- 
son; Foster's  Crown  Law  183. 

68 


CITIZENSHIP 


The  Different  Kinds  of  Allegiance. 

The  books  describe  allegiance  as  arising  in  four 
ways: 

1.  Natural  allegiance  —  that  which  arises  by  na- 
ture and  birth. 

2.  Acquired  allegiance  —  that  arising  by  denizen- 
ation  or  naturalization. 

3.  Local  allegiance  —  that  arising  from  tempo- 
rary residence,  however  short,  in  a  country.2 

4.  Legal  allegiance  —  that  arising  from  oath. 

Formal  Compact  Not  Necessary  to  Create 
Allegiance. 

It  is  by  no  means  essential  that  a  formal  com- 
pact  between  a  citizen  and  his  government  shall  ex- 

2 Am.  &  Eng.  Encyc.  of  Law,  p.  148,  (2d  Ed.);  Brown's  Law 
Dictionary  (Sprague's  Ed.)  ;  Powers  of  Congress,  (1855)  8  Op.  Atty.- 
Gen.  139;  Rights  of  Expatriation,  (1859)  9  Op.  Atty.-Gen.  356;  Car- 
lisle v.  U.  S.,  (1872)  16  Wall.  (U.  S.)  147;  Inglis  v.  Sailor's  Snug 
Harbor,  (1830)  3  Pet.  (U.  S.)  155;  Jackson  V.  Goodell,  (1822)  20 
Johns.  (N.  Y.)  188;  1  Blackstone's  Com.  366.  Allegiance  is  often 
spoken  of  as  fealty.  Wallace  v.  Harmstad,  (1863)  44  Pa.  St.  501. 
Nature  of  alien's  allegiance  to  country  of  his  residence,  1  East 
P.  C.,  c.  2,  Sec.  4;  1  Hale  P.  C.  10;  Foster's  Crown  Law  Dis- 
course, Sec.  2;  2  Kent's  Com.  63-64;  Carlisle  v.  U.  S.,  (1872)  16 
Wall.  (U.  S.)  147;  Homestead  Case,  (1892)  1  Pa.  Dist.  785; 
The  Schooner  Exchange  V.  M'Faddon,  (1812)  7  Cranch  (U.  S.) 
116;  Ex  p.  Reynolds,  (1879)  5  Dill.  (U.  S.)  394;  Ex  p.  Thompson, 
(1824)  3  Hawks  (N.  Car.)  362. 

Allegiance  may  be  an  absolute  and  permanent  obligation,  or  it 
may  be  a  qualified  and  temporary  one.  The  citizen  or  subject  owes 
an  absolute  and  permanent  allegiance  to  his  government  or  sover- 
eign, at  least  until,  by  some  open  and  distinct  act,  he  renounces 
it  and  becomes  a  citizen  or  subject  of  another  government  or  an- 
other sovereign.  The  alien,  whilst  domiciled  in  the  country,  owes  a 
local  and  temporary  allegiance,  which  continues  during  the  period 
of  his  residence.  Carlisle  v.  U.  S.,  (1872)  16  Wall.  (U.  S.)  147. 


70  CITIZENSHIP 


chapter  jst  in  order  to  create  the  duty  of  allegiance.3  If  a 
'  de  facto  government  is  established,  overthrowing  and 
supplanting  a  de  jure  government,  and  the  citizen 
remains  under  the  newly  established  government, 
he  assumes  the  duty  of  allegiance  to  it,  which  al- 
ways exists  between  the  governing  and  the  gov- 
erned.4 When  a  government  is  changed,  those  dis- 
affected do  not  owe  immediate  allegiance  to  the 
changed  authority,  but  should  be  allowed  a  reason- 
able time  to  depart,  and  the  court  and  jury  should 
determine  what  is  such  reasonable  time.5 

Of  Dual  Allegiance. 

ve0r"yroa"s  to  ^e  Pecul*ar  nature  and  constitution  of  our  gov- 
5fieagTa°nucc!  eminent  has  created  a  dual  allegiance  on  the  part 
of  our  citizens;  an  allegiance  due  to  the  national 
government  and  to  the  State  government.  In  the- 
ory these  two  have  been,  from  the  outset,  entirely 
compatible  with  each  other.  In  practice,  however, 

3  Respublica  v.  Chapman,  (1781)   1  Dall.  (Pa.)  53. 

*  Thorington  v.  Smith,  (1868)  8  Wall.  (U.  S.)  1;  Respublica  v. 
Chapman,  (1781)  1  Dall.  (Pa.)  53.  The  Confederate  government 
never  a  true  de  facto  government,  Keppel  v.  Petersburg  R.  Co., 
(1868)  Chase  (U.  S.)  167,  14  Fed.  Cas.  No.  7,722;  Sprott  v.  U.  S., 
<1874)  20  Wall.  (U.  S.)  459;  Shortridge  v.  Macon,  (1867)  Chase 
<U.  S.)  136.  The  vanquished  owe  allegiance  to  the  victor,  Hanauer 
v.  Woodruff,  (1872)  15  Wall.  (U.  S.)  439;  U.  S.  V.  Rice,  (1819)  4 
Wheat.  (U.  S.)  246;  Thorington  v.  Smith,  (1868)  8  Wall.  (U.  S.) 
1.  Duration  of  victor's  sovereignty  co-extensive  with  his  absolute 
control,  Fleming  v.  Page,  (1850)  9  How.  (U.  S.)  603. 

In  such  a  case  the  inhabitants  pass  under  a  temporary  allegiance 
to  the  de  facto  government,  and  are  bound  by  such  laws,  and  such 
only,  as  it  chooses  to  recognize  and  impose.  From  the  nature  of 
the  case,  no  other  laws  can  be  obligatory  upon  them,  for  where 
there  is  no  protection  or  allegiance  or  sovereignty,  there  can  be  no 
claim  to  obedience.  Per  Story,  J.,  in  U.  S.  v.  Rice,  (1819)  4  Wheat. 
(U.  S.)  246. 

5 Respublica  v.  Chapman,   (1781)   1  Dall.   (Pa.)  53. 


CITIZENSHIP  71 


they  gave  rise  to  a  great  debate,  which  lasted  over    Chapter 
seventy  years,  and  culminated  in  one  of  the  blood-          ' 
iest  civil  wars  in  history. 

This  controversy  was  primarily  due  to  the  fol- 
lowing facts : 

1.  That  the  States  which  formed  the  Union  were 
independent  sovereign  States,  entitled  to  the 
unqualified  allegiance  of  their  citizens,  before 
the  Union  existed. 

2.  That,  whatever  may  have  been  the  quality  and 
priority  of  the  allegiance  due  to  the  Federal 
government   by   the   citizens   of  the   States 
which   formed  the  Union,  that  Federal  alle- 
giance   was  junior  in  time  to  the  allegiance 
which  they  owed  to  their  States. 

3.  That  by  Amendment  X  to  the  Federal  Con- 
stitution,    adopted     almost     simultaneously 
with  the  Constitution,  all  powers  not  dele- 
gated to  the  United  States  by  the  Constitu- 
tion or  prohibited  by  it  to  the  States  were 
reserved  to  the  States  respectively,  or  to  the 
people ;  and 

4.  That  although  the  question  of  the  right  of  a 
State  to  withdraw  from  the  Union,  if  dissat- 
isfied with  its  operations,  was  fully  consid- 
ered and  debated  in  the  convention  which 
framed  the  Constitution,  there  was  no  ex- 
pression in  the  instrument,  as  it  was  finally 
adopted,  definitely  settling  the  existence  or 
nonexistence  of  that  right,  and  it  was  left 
an  open  and  debatable  question. 

As  a  consequence,  much  confusion  existed  for 
many  years,  in  the  minds  of  many  citizens,  upon  Ciyvii  war. 


72  CITIZENSHIP 


chapter  the  question  whether,  in  an  issue  between  the  State 
IIL  and  the  Nation,  what  was  known  in  the  debates  of 
the  period  as  their  paramount  allegiance  was  due 
primarily  to  the  State  or  to  the  Nation  by  citizens 
of  both.  Without  going  further  into  that  protracted 
and  bloody  argument,  it  is  sufficient  to  say  that 
the  views  of  citizens  upon  the  right  of  a  State  to 
withdraw  from  the  Union  and  upon  the  question 
whether,  in  such  a  crisis,  the  paramount  allegiance 
of  the  citizen  was  due  to  his  State  or  to  the  Nation, 
differed  so  irreconcilably  in  different  sections  of 
the  Union  that,  when  certain  States  and  their  citizens 
attempted  to  withdraw  or  secede  from  the  Union,  the 
attempt  was  resisted  by  the  other  States  and  their 
citizens  who  still  adhered  to  the  United  States,  and 
a  bloody  civil  war  followed,  waged  by  the  States 
which  adhered  to  the  Union,  and  in  the  name  of  the 
United  States,  the  outcome  of  which  was  that  those 
•who  claimed  that  the  Union  was  an  "an  indissoluble 
Union  of  indestructible  States,"  and  that  paramount 
allegiance  was  due  to  the  United  States  by  every 
citizen,  completely  triumphed,  and  that  doctrine  is 
now  established  beyond  question. 

ofhePara!h  Since  the  great  Civil  War  the  oath  of  allegiance 
to  the  nation  administered  to  persons  entering  its 
military  and  naval  service  pledges  the  party  taking 
it  that  he  will  thenceforth  bear  true  faith  and  alle- 
giance to  the  United  States,  and  will  support,  pro- 
tect, and  defend  it  against  all  enemies  whatsoever, 
' t  foreign  or  domestic. ' '  For  the  peace  of  the  nation 
it  would  have  been  better  if  such  an  unqualified  oath 
of  paramount  allegiance  had  been  exacted  from  all 
public  servants  from  the  foundation  of  the  govern- 


CITIZENSHIP  73 


ment;  for  it  is  a  historic  fact  that  at  the  outbreak  chapter 
of  the  great  Civil  War  many  persons  who  had  for  IIL 
years  been  in  the  military  and  naval  service  of  the 
United  States,  a  large  proportion  of  whom  had  been 
educated  by  the  Federal  government,  had  never  been 
called  upon  to  take  an  oath  of  paramount  allegiance 
to  the  United  States,  and  consequently  felt  at  liberty 
to  resign  their  positions  in  the  Federal  service,  and 
tender  their  services  to  their  native  States,  under 
the  firm  and  conscientious  conviction  that  the  latter 
were  entitled  to  their  paramount  allegiance.  Among 
them  were  men  whose  exalted  lives  and  spotless  char- 
acters exclude  all  questions  of  the  purity  of  their 
motives,  and  whose  action  only  emphasizes  the  dif- 
ficulty of  discovering  conclusively  and  deciding 
where  paramount  allegiance  was  due  under  all  the 
circumstances. 

Fortunately,  this  question,  in  the  light  of  the 
arbitrament  of  war,  can  never  recur.  Henceforth 
it  must  be  conceded  that,  whenever  the  two  alle- 
giances, Federal  and  State,  of  an  American  citizen, 
are  in  apparent  conflict,  the  latter  must  yield  to  the 
former.  There  can  be  no  such  thing,  under  our  sys- 
tem, as  allegiance  to  a  State,  in  conflict  with  alle- 
giance to  the  Federal  government. 

Of  Patriotism. 
The  spirit  in  the  citizen  that,  originating  in  love  charac- 

...  teristics 

of  country,  results  in  obedience  to  its  laws,  the  sup-  °fm  patriot- 
port  and  defense  of  its  existence,  rights,  and  insti- 
tutions, and  the  promotion  of  its  welfare,  is  called 
patriotism.     The  more  unselfish  and  self-sacrificing 
is  the  spirit  displayed  by  the  citizen,  the  higher  and 


74  CITIZENSHIP 


Chapter    more  exalted  his  patriotism.    Such  a  citizen  is  called 
IIL      a  patriot. 

In  the  experience  of  governments,  the  citizens 
who  evade  bearing  their  personal  burdens  of  citi- 
zenship, or,  when  tested,  lack  courage  to  discharge 
those  burdens,  are  not  so  numerous  as,  and  are  much 
more  readily  discovered  than,  those  who  evade 
the  lawful  burdens  upon  their  property,  and  who,  by 
eloigning  it  or  concealing  it  where  it  cannot  be 
reached  for  taxation,  cast  the  burden  of  taxation 
unduly  upon  their  fellow-citizens,  while  reaping  a 
full  share  of  benefits.  Such  citizens  are  not  a  whit 
less  faithless  or  detestable  than  the  physical  skulk- 
ers or  cowards.  It  is  the  citizen  who  yields  the 
legitimate  share  of  his  property,  as  well  as  the 
proper  services  of  his  person,  to  the  lawful  demands 
of  his  country  for  support,  who  is  the  real  patriot. 
Yet,  partly  because  the  crime  is  not  so  apparent, 
and  partly  because  of  the  power  of  wealth  to  buy 
condonement  of  crime,  the  scorn  of  mankind  has 
never  been  visited  as  relentlessly  upon  the  tax- 
dodger  as  upon  the  coward. 

Of  Treason. 
Defini-  The  antithesis  of  allegiance  and  patriotism  is 

tions  and 

treadson.of  treason.  Treason  is  defined  as  "a  breach  of  alle- 
giance to  a  government  committed  by  one  under  its 
protection. ' ' 6  Under  the  English  law  there  were  two 
kinds  of  treason,  high  and  petit.  High  treason  em- 
braced the  crime  which  we  generally  know  as  trea- 
son. Petit  treason  embraced  sundry  acts  now 

«28  Am.  &  Eng.  Encyc.  of  L.  457;  Rex  v.  Cranburne,  (1696)  13 
How.  St.  Tr.  227;  Rex  v.  Vaughan,  (1696),  13  How.  St.  Tr.  526; 
U.  S.  v.  Wiltberger,  (1820)  5  Wheat.  (U.  S.)  76;  Respublica  v. 


CITIZENSHIP  75 


treated  as  distinct  crimes,  as  when  a  servant  killed    Chapter 
his  master,  a  wife  her  husband,  or  an  ecclesiastical 
person  his  superior.7    In  America  we  have  only 
simple  treason. 

By  the  Federal  Constitution,  treason  is  defined 
as  follows:  "Treason  against  the  United  States 
shall  consist  only  in  levying  war  against  them,  or  in 
adhering  to  their  enemies,  giving  them  aid  and  com- 
fort."8 The  same  instrument  provides  that  the 
President  and  Vice-President  and  all  civil  officers  of 
the  United  States  may  be  removed  from  office  for 
treason;9  and  it  likewise  renders  senators  and  rep- 
resentatives liable  to  arrest  for  treason.1  But  the 
Constitution  expressly  requires,  for  conviction  of 
treason,  the  testimony  of  two  witnesses  to  the  same 
overt  act,  or  a  confession  in  open  court.  Our  coun- 
try has  been  singularly  blessed  in  the  small  number 
of  prosecutions  for  treason.  The  decisions  have 
been  correspondingly  few.2 

A  whole  chapter  of  the  Eevised  Statutes,  con- 
sisting  of  eight  sections,  is  devoted  to  "crimes 
against  the  existence  of  the  government."  The 
crimes  defined  are  treason,  misprision  of  treason, 
inciting  or  engaging  in  rebellion  or  insurrection, 

Chapman,  (1781)  1  Ball.  (Pa.)  53;  1  Hale's  Pleas  of  Crown,  48; 
U.  S.  v.  Greiner,  (1861)  4  Phila.  (Pa.)  396;  18  Leg.  Int.  (Pa.) 
149;  26  Fed.  Cas.  No.  15,262. 

7  28  Am.  &  Eng.  Encyc.  of  L.  p.  458 ;  State  v.  Bilansky,  3  Minn. 
246. 

8U.  S.  Const.,  Art.  Ill,  Sec.  3,  Cl.  1. 

»U.  S.  Const.,  Art.  II,  Sec.  4,  Cl.  1. 

i  U.  S.  Const.,  Art.  I,  Sec.  6,  Cl.  1. 

2U.  S.  v.  Insurgents,  (1795)  2  Ball.  (U.  S.)  335;  U.  S.  V. 
Mitchell,  (1795)  2  Ball.  (U.  S.)  348;  Ex  p.  Bollman,  (1807)  4 
Cranch  (U.  S.)  75;  Burr's  Trial,  4  Cranch  (U.  S.)  469. 


7(5  CITIZENSHIP 


Chapter  criminal  correspondence  with  foreign  government, 
'  seditious  conspiracy,  recruiting  soldiers  or  sailors 
to  serve  against  the  United  States,  and  enlistment 
to  serve  against  the  United  States.  Of  these  crimes 
the  punishments  for  treason  and  misprision  of  trea- 
son were  enacted  in  1790,  and  the  punishment  for 
criminal  correspondence  with  foreign  governments 
was  enacted  in  1799;  all  the  other  offenses  men- 
tioned in  the  chapter  and  the  punishments  therefor 
were  declared  by  statutes  enacted  in  1861  and  1862 
after  the  outbreak  of  the  great  Civil  War.3 

The  federal  decisions  on  the  constitutional  and 
statutory  offense  of  treason  are  very  few,4  and  show 
within  what  narrow  limits  the  crime  of  treason  is 
confined  under  our  system. 

Jfisfreason.  0^  misprision  of  treason,  which  consists  in  con- 
cealing, or  in  failing  to  disclose  and  make  known,  the 
commission  of  the  crime  of  treason,  as  soon  as  may 
be,  it  is  sufficient  to  say  that  but  three  cases  are 
known  to  the  author  in  which  the  discussion  of  this 
crime  has  occurred.5 

And  as  the  other  acts  in  the  chapter  on  crimes 
against  the  existence  of  the  government  were  passed 

a  Eev.  Stat.  U.  S.,  Title  LXX,  Ch.  2,  Sees.  5331-5338. 

*U.  S.  v.  Insurgents,  (1795)  2  Ball.  (U.  S.)  335;  U.  S.  v.  Mitch- 
ell, (1795)  2  Dall.  (U.  S.)  348;  U.  S.  v.  Villato,  (1797)  2  Dall. 
(U.  S.)  370;  Ex  p.  Bollman,  (1807)  4  Cranch  (U.  S.)  75;  U.  S.  v. 
Pryor,  (1814)  3  Wash.  (U.  S.)  234;  U.  S.  V.  Hanway,  (1851)  2 
Wall.  Jr.  (C.  C.)  139;  1  Burr's  Trial,  14-16;  2  Burr's  Trial,  402, 
405,  417;  U.  S.  v.  Hoxie,  (1808)  1  Paine  (U.  S.)  265;  U.  S.  v. 
Greathouse,  (1863)  2  Abb.  (U.  S.)  364;  Confiscation  Cases,  (1873) 
20  Wall.  (U.  S.)  92;  Wallach  v.  Van  Riswick,  (1875)  92  U.  S.  202; 
Windsor  v.  McVeigh,  (1876)  93  U.  S.  274. 

5U.  S.  v.  Wiltberger,  (1820)  5  Wheat.  (U.  S.)  97;  Confiscation 
Cases,  (1872)  1  Woods  (U.  S.)  221;  U.  S.  V.  Tract  of  Land.  (1871) 
1  Woods  (U.  S.)  475. 


CITIZENSHIP  77 


after  the  Civil  War  was  flagrant,  the  attempt  to  en-    Chapter 
force  them  would  have  been  in  effect  to  make  them  , 
ex  post  facto  laws,  so  that  they  were  not  vigor- 
ously enforced.6 

Treason  is  often  described  in  the  books  as  the  deutfact0o 
greatest  crime  known  to  the  law.7  The  individual  m°«£n" 
guilty  of  treason  is  known  as  a  traitor.8  Every 
citizen  owes  to  his  government  support  and  loyalty 
until  he  openly  renounces  his  country  and  becomes 
a  citizen  or  subject  of  another  country,  or  his  gov- 
ernment is  supplanted  by  another  in  a  manner  be- 
yond his  control.  Thus  if  a  de  facto  government  is 
established  over  him  in  a  manner  beyond  his  con- 
trol, by  which  the  de  jure  government  theretofore 
existing  is  entirely  supplanted,  that  entitles  the  de 
facto  government  to  his  allegiance,  and  to  obey  it  is 
not  treason  to  the  de  jure  government,  even  if  that 
rightful  or  de  jure  government  shall  be  afterwards 
restored.9  But  the  doctrine  of  the  English  law  has 
not  always  admitted  the  above  rule,  for  in  the  cele- 

"  Since  the  adoption  of  the  Constitution  but  few  cases  of  indict- 
ment for  treason  have  occurred,  and  most  of  them  not  many  years 
afterwards."  U.  S.  v.  Hanway,  (1851)  2  Wall.  Jr.  (C.  C.)  201. 

<*Ex  p.  Lange,   (1873)    18  Wall.   (U.  S.)    163. 

7U.  S.  v.  Hoxie,  (1808)  1  Paine  (U.  S.)  265;  Charge  to  Grand 
Jury,  (1851)  2  Curt.  (U.  S.)  630,  30  Fed.  Cas.  No.  18,269;  Charge 
to  Grand  Jury,  (1861)  1  Bond  (U.  S.)  609;  Charge  to  Grand  Jury, 
(1861)  4  Blatchf.  (U.  S.)  518,  CO  Fed.  Cas.  No.  18,270. 

"  Under  the  laws  of  the  United  States,  the  highest  of  all  crimes 
is  treason.  It  must  be  so  in  every  civilized  state;  not  only  because 
the  first  duty  of  a  state  is  self-preservation,  but  because  this  crime 
naturally  leads  to  and  involves  many  others  destructive  of  the 
safety  of  individuals  and  of  the  peace  and  welfare  of  society." 
Charge  to  Grand  Jury,  (1851)  2  Curt.  (U.  S.)  633. 

8U.  S.  v.  Burr,  (1807)   25  Fed.  Cas.  No.  14,693. 

»Thorington  v.  Smith,  (1868)  8  Wall.  (U.  S.)  1;  Respublica  V. 
Chapman,  (1781)  1  Ball.  (Pa.)  53;  Keppel  v.  Petersburg  R.  Co., 
(1868)  Chase  (U.  S.)  167,  14  Fed.  Cas.  No.  70,722. 


78  CITIZENSHIP 


Chapter  brated  case  of  General  Vane,  who  took  no  part  in 
the  execution  of  Charles  I  but  subsequently  com- 
manded the  Parliamentary  Army,  it  was  held  that 
his  plea  that  the  Parliamentary  government  was 
de  facto  did  not  justify  obedience  to  its  commands, 
and  Vane  was  executed.1 

The  law  of  treason  in  England  is  based  on  the 
English  statute  25  Edw.  Ill,  stat.  5,  c.  5.  The  defini- 
tion of  treason  in  our  Constitution,  Article  III,  Sec- 
tion 3,  Clause  1,  is  taken  from  the  third  and  fourth 
sections  of  the  English  act.2  The  American  courts 
have  followed  the  construction  put  upon  the  language 
by  the  English  courts.3 

^e  Constitution  having  defined  the  crime  of 
treason,  it  is  beyond  the  power  of  Congress  either 
to  broaden  or  contract  the  definition  of  treason,  or 

i  (1662)  J.  Kel.  14,  6  How.  St.  Tr.  119. 

2U.  S.  V.  Burr,   (1807)   25  Fed.  Gas.  No.  14,693. 

"The  clause  was  borrowed  from  an  ancient  English  statute, 
enacted  in  the  year  1352,  in  the  reign  of  Edward  the  Third,  com- 
monly known  as  the  Statute  of  Treasons.  Previous  to  the  passage 
of  that  statute,  there  was  great  uncertainty  as  to  what  constituted 
treason.  Numerous  offences  were  raised  to  its  grade  by  arbitrary 
constructions  of  the  law.  The  statute  was  passed  to  remove  this 
uncertainty,  and  to  restrain  the  power  of  the  crown  to  oppress  the 
subject  by  constructions  of  this  character.  It  comprehends  all 
treason  under  seven  distinct  branches.  The  framers  of  our  Consti- 
tution selected  one  of  these  branches,  and  declared  that  treason 
against  the  United  States  should  be  restricted  to  the  acts  which 
it  designates."  U.  S.  v.  Greathouse,  (1863)  2  Abb.  (U.  S.)  371. 

3U.  S.  v.  Hoxie,  (1808)  1  Paine  (U.  S.)  265;  Charge  to  Grand 
Jury,  (1851)  2  Curt.  (U.  S.)  630,  30  Fed.  Gas.  No.  18,269;  U.  S.  v. 
Greiner,  (1861)  4  Phila.  (Pa.)  396,  18  Leg.  Int.  (Pa.)  149;  U.  S. 
V.  Fries,  (1799)  3  Ball.  (Pa.)  515;  U.  S.  V.  Greathouse,  (1863)  2 
Abb.  (U.  S.)  364;  U.  S.  v.  Hanway,  (1851)  2  Wall.  Jr.  (C.  C.)  200. 

"  The  term  [levying  war]  is  not  for  the  first  time  applied  to 
treason  by  the  Constitution  of  the  United  States.  It  is  a  technical 
term.  It  is  used  in  a  very  old  statute  of  that  country  whose  lan- 
guage is  our  language,  and  whose  laws  form  the  substratum  of  our 
laws.  It  is  scarcely  conceivable  that  the  term  was  not  employed 


CITIZENSHIP  79 


to  punish  as  treason  what  is  not  defined  to  be  treason    Chapter 
in  the  Constitution,  or  to  fail  to  punish  as  treason          ' 
what  the  Constitution  declares  to  be  such.4 

In  some  of  the  States  the  State  constitution  de- 
fines  the  crime  of  treason  against  the  States;  in 
others  it  is  left  to  the  regulation  of  statutes.5  For 
example,  in  a  former  constitution  of  Alabama  the 
definition  of  treason  was  similar  to  that  in  the  Con- 
stitution of  the  United  States.  In  a  case  arising  in 
that  State  for  aiding  a  rebellion  of  slaves,  it  was 
said  that  while  the  crime  contained  several,  but  not 
all,  of  the  elements  of  treason,  it  might  be  indicted 
as  a  separate  crime,  since  it  did  not  fall  within  the 
constitutional  definition  of  treason. 

In  the  State  of  Virginia,  one  of  the  oldest  of  the 
States,  the  constitutions  of  the  State  have  not  at- 
tempted to  define  the  crime  of  treason  against  the 
State,  but  have  left  it  to  statutory  enactment. 

It  has  been  held  that  the  crime  of  constructive 
treason  is  not  recognized  in  the  United  States.6 

by  the  framers  of  our  Constitution  in  the  sense  which  had  been 
affixed  to  it  by  those  from  whom  we  borrowed  it."  Per  Marshall, 
C.  J.  in  U.  S.  v.  Burr,  (1807)  25  Fed.  Cas.  No.  14,693. 

"  These  terms,  *  levying  war/  '  adhering  to  enemies/  '  giving  them 
aid  and  comfort,'  were  not  new.  They  had  been  well  known  in 
English  jurisprudence  at  least  as  far  back  as  the  reign  of  Edward 
III.  They  had  been  frequently  the  subject  of  judicial  exposition, 
and  their  meaning  was  to  a  great  extent  well  settled."  Charge  to 
Grand  Jury,  (1861)  1  Sprague  (U.  S.)  603. 

*U.  S.  v.  Greathouse,  (1863)  2  Abb.  (U.  S.)  371;  U.  S.  v.  Fries, 
(1799)  3  Ball.  (Pa.)  515,  9  Fed.  Cas.  No.  5,126;  Homestead  Case, 
(1892)  1  Pa.  Dist.  785. 

estate  v.  McDonald,    (1837)   4  Port.    (Ala.)    449. 

*Ex  p.  Bollman,   (1807)   4  Cranch   (U.  S.)   75. 

"The  framers  of  our  Constitution,  who  not  only  defined  and  lim- 
ited the  crime,  but  with  jealous  circumspection  attempted  to  protect 
their  limitation  by  providing  that  no  person  should  be  convicted  of 
it,  unless  on  the  testimony  of  two  witnesses  to  the  same  overt  act, 


80  CITIZENSHIP 


Chapter 

in.  Of  Dual  Treason. 


Treason  A  citizen  may  commit  a  dual  act  of  treason,  by 

reason  of  his  act  being  equally  treasonable  against 


against 

pared  com~  ^e  Distinct  sovereignties  of  the  Nation  and  the 
State.  The  act  may  be  a  single  act,  yet  the  offenses 
against  the  Nation  and  the  State  be  distinct  and 
punishable  by  both. 

Treason  against  the  United  States  is  committed 
by  invasion  of  national  sovereignty.7  Treason 
against  a  State  is  committed  by  acts  directed  against 
the  sovereignty  of  the  State,  as  an  attempt  to  over- 
throw the  State  government.8 

It  was  said  in  U.  S.  v.  B  oilman,8*  that  the 
intention  with  which  treason  is  committed  deter- 
mines the  species  of  treason,  and  that  no  injury, 
even  if  it  extend  to  an  attempt  to  oppose  and 
destroy  the  laws  and  government  of  any  one  of 
the  States,  will  amount  to  treason  against  the  United 
States. 

or  on  confession  in  open  court,  must  have  conceived  it  more  safe 
that  punishment  in  such  cases  should  be  ordained  by  general  laws, 
formed  upon  deliberation,  under  the  influence  of  no  resentments, 
and  without  knowing  on  whom  they  were  to  operate,  than  that  it 
should  be  inflicted  under  the  influence  of  those  passions  which  the 
occasion  seldom  fails  to  excite,  and  which  a  flexible  definition  of 
the  crime,  or  a  construction  which  would  render  it  flexible,  might 
bring  into  operation.  It  is,  therefore,  more  safe  as  well  as  more  con- 
sonant to  the  principles  of  our  Constitution,  that  the  crime  of  trea- 
son should  not  be  extended  by  construction  to  doubtful  cases;  and 
that  crimes  not  clearly  within  the  constitutional  definition,  should 
receive  such  punishment  as  the  legislature  in  its  wisdom  may  pro- 
vide." Per  Chief  Justice  Marshall,  in  Ex  p.  Bollman,  (1807)  4 
Cranch  (U.  S.)  127. 

7U.  S.  v.  Hoxie,   (1808)   1  Paine  (U.  S.)  265. 

s  Charge  to  Grand  Jury,  (1842)  1  Story  (U.  S.)  614;  People  V. 
Lynch,  (1814)  11  Johns.  (N.  Y.)  550;  Ex  p.  Quarrier,  (1866)  2 
W.  Va.  569. 

s*(1807)    4  Cranch    (U.  S.)    127. 


CITIZENSHIP  81 


In  the  case  of  Ex  p.  Quarrier?  it  was  said  that    chapter 

if,  by  the  act,  treason  is  committed  against  both  ! — 

State  and  Federal  governments,  the  traitor  is  liable 
to  punishment  by  each  sovereignty. 

But  in  the  case  cited,  a  citizen  of  West  Virginia, 
in  the  great  rebellion,  waged  war,  as  a  Confederate 
soldier,  against  the  United  States,  and  it  was  held 
that  although  West  Virginia  was  a  component  part 
of  the  Union  his  act  was  not  treason  against  her, 
for  treason  against  her  could  only  be  committed  by 
acts  done  directly  against  her  State  government. 

Perhaps  the  most  widely  known  act  of  treason  John 

Brown's 

against  both  sovereignties,  in  our  country,  is  the  cele-  raid- 
brated  but  unreported  case  of  Virginia  v.  John 
Brown  and  others.  In  the  year  1859,  in  a  time  of 
profound  peace,  John  Brown  and  a  party  of  armed 
followers  suddenly  appeared  in  the  night  time  at 
Harper's  Ferry,  Virginia,  seized  the  United  States 
arsenal  and  arms,  and  from  that  position,  in  which 
they  fortified  themselves,  sent  forth  small  parties  to 
seize  sundry  citizens  of  Virginia  and  to  incite  Vir- 
ginia slaves  to  insurrection.  While  in  possession 
of  the  United  States  arsenal  they  fired  upon  citizens 
and  killed  and  wounded  fifteen  persons.  It  subse- 
quently developed  that  they  were  proceeding  under 
a  plan  of  government  formulated  in  Canada,  which 
contemplated  the  liberation  of  the  slaves  and  the  in- 
stallation of  a  government  wholly  inconsistent  with 
the  existing  governments,  Federal  and  State.  Both 
Federal  and  State  authorities  employed  their  mili- 
tary forces  to  suppress  this  violent  outbreak.  The 
stronghold  in  which  Brown  and  a  few  companions 

o  (1866)    2  W.  Va.   569. 


82  CITIZENSHIP 


Chapter  had  intrenched  themselves,  an  engine  house  on  the 
Harper's  Ferry  arsenal  reservation  of  the  United 
States,  was  carried  by  assault  by  a  party  of  United 
States  marines,  under  a  heavy  fire  from  Brown  and 
his  party,  and  a  marine  was  killed  before  the  insur- 
gents were  captured. 

Safnsstethe        The  acts  committed  by  Brown  and  his  party  fell 

states.  clearly  within  all  the  definitions  of  what  constitutes 
the  actual  levying  of  war  against  the  United  States. 
They  had  formed  themselves  into  a  body  and 
marched  with  weapons,  offensive  and  defensive,  with 
a  public  design  that  was  unmistakable.  This  had 
been  held  to  constitute  levying  war.9*  They  had  by 
force  of  arms  seized,  occupied,  and  appropriated  an 
arsenal  of  the  United  States,  and  turned  its  guns 
upon  Federal  authority,  which  was  an  unequivocal 
act  of  war.1  They  had  held  it  against  the  govern- 
ment.2 They  had  refused  to  surrender,  and  resisted, 
with  murder,  the  attempt  of  the  government  to  re- 
possess itself  of  its  property.  All  these  constituted 
treason  against  the  United  States. 

Sains?  the  Their  offenses  were  equally  treason  against  the 
State  of  Virginia,  whose  laws  denounced  as  treason, 
with  the  penalty  of  death,  and  without  pardoning 
power  in  the  executive,  the  acts  of  — 

1.  Establishing,  without  authority  of  the  legis- 
lature, any  government  in  the  State,  or  hold- 
ing or  executing  in  such  usurped  government 


»*Rex  v.  Vaughan,  (1696)   13  How.  St.  Tr.  531. 

1  Charge  to  Grand  Jury,  (1861)   1  Sprague  (U.  S.)   602;  Charge 
to  Grand  Jury,  (1861)  4  Blatchf.  (U.  S.)  518,  30  Fed.  Cas.  18,270. 

2  Foster's  Crown  Law,  208. 


CITIZENSHIP  33 


any  office,  or  professing  allegiance  or  fidelity    chapter 
to  it;  IIL 

2.  Or  resisting  the  execution  of  the  laws,  under 
color  of  its  authority. 

3.  Advising  or  conspiring  with  slaves  to  rebel 
or  make  insurrection,  or  with  any  person  to 
induce  a  slave  to  rebel  or  make  insurrection, 
whether   such  rebellion  or  insurrection  be 
made  or  not. 

The  above  laws  had  been  on  the  statute-books 
of  Virginia  for  many  years  before  this  outbreak. 

The  prisoners  were  delivered  over  by  the  mili- 
tary forces  of  the  United  States  to  the  State  authori- 
ties of  Virginia,  and  were  promptly  tried  for  treason 
against  the  State,  convicted,  condemned,  and 
hanged  ;  so  that  the  United  States  had  no  opportunity 
to  prosecute  them  for  the  offense  of  treason  against 
itself.  The  excitement  of  the  times  upon  the  sub- 
ject of  slavery  was  such  that,  although  the  acts 
of  John  Brown  and  his  associates  were  plainly 
treason  against  the  United  States  and  the  State  of 
Virginia,  indefensible  on  any  plea  but  that  of  in- 
sanity, and  although  Brown  himself  refused  to  allow 
that  plea  to  be  interposed  in  his  behalf,  and  declared 
that  he  had  a  fair  trial,  his  execution  was  denounced 
as  an  act  of  murder  by  many  anti-slavery  people,  and 
he  is  still  canonized  as  "John  Brown  the  Martyr." 

The  Elements  of  the  Offense. 

All  the  books  concur  that  an  act  of  treason  is 
composed  of  two  elements,  to  wit:  the  intention,  and 
the  overt  act.3  The  intent  alone  is  not  sufficient  to 

*U.  S.  v.  Hanway,   (1851)   2  Wall.  Jr.   (C.  C.)   169;  U.  S.  v. 


84 


CITIZENSHIP 


What  is 
an  overt 
act. 


Chapter  constitute  treason.  Nor  are  mere  words,  whether 
JL  spoken,  written,  or  printed,  of  themselves  treason.4 
Words  spoken  are  admissible  to  establish  treasona- 
ble intent,  but  little  weight  is  to  be  attached  to  the 
mere  declaration  of  a  party.5 

What  constitutes  an  overt  act  has  been  the  sub- 
ject of  much  discussion.  An  overt  act  is  undoubt- 
edly essential  to  the  levy  of  war.  To  that  there  must 
be  a  combination  or  association  of  people  united  by 
a  common  purpose  in  a  conspiracy  directed  against 
the  government.6 

The  time  of  the  formation  of  a  treasonable  de- 
sign is  immaterial.  The  preconcerted  action  to 
which  a  number  of  people  are  privy  is  a  necessary 
element  of  an  intention  to  levy  war.  The  conspiracy 
may  be  proven  either  by  the  declarations  of  the  indi- 
viduals or  by  proof  of  the  proceedings  at  the  meet- 
ings. After  proof  of  the  conspiracy  to  effect  a  trea- 

Pryor,  (1814)  3  Wash.  (U.  S.)  234;  Law  of  Treason,  (1842)  1 
Story  (U.  S.)  614;  Reg.  V.  Gallagher,  (1883)  15  Cox  (C.  C.)  291; 
Eex  v.  Stone,  (1796)  6  T.  R.  527;  Case  of  Armes,  (1596)  Popham 
121,  Foster  208;  Reg.  v.  Frost,  (1839)  9  C.  &  P.  129,  38  E.  C.  L.  70. 

"  The  plain  meaning  of  the  words  *  overt  act/  as  used  in  the  Con- 
stitution and  the  statute,  is  an  act  of  a  character  susceptible  of 
clear  proof,  and  not  resting  in  mere  inference  or  conjecture.  They 
were  intended  to  exclude  the  possibility  of  a  conviction  of  the  odious 
crime  of  treason,  upon  proof  of  facts  which  were  only  treasonable 
by  construction  or  inference,  or  which  have  no  better  foundation 
than  mere  suspicion."  Charge  to  Grand  Jury,  (1861)  1  Bond 
(U.  S.)  611,  30  Fed.  Gas.  No.  18,272. 

*  Law  of  Treason,  (1861)  5  Blatchf.  (U.  S.)  549;  Charge  to 
Grand  Jury,  (1861)  1  Bond  (U.S.)  609;  State  v.  M'Donald,  (1837) 
4  Port.  (Ala.)  449;  Chichester  v.  Philips,  (1680)  T.  Raym.  404. 

"The  intention,  being  the  chief  constituent  of  the  offense,  must 
be  proved  by  some  development  of  less  equivocal  import."  State  v. 
M'Donald,  (1837)  4  Port.  (Ala.)  449. 

6  Rex  v.  Cook,   (1696)   13  How.  St.  Tr.  391. 

e  Reg.  v.  Frost,  (1839)  9  C.  &  P.  129,  38  E.  C.  L.  70. 


CITIZENSHIP  85 


sonable  design  the  deed  of  one,  in  pursuance  of  that    Chapter 
design,  is  the  act  of  all.7 


The  overt  act  contemplated  by  the  language  of  the 
Constitution  is  generally  the  actual  employment  of 
force  by  a  collection  of  men  ;  but,  all  preparatory  ar- 
rangements having  been  completed,  the  assembling  of 
a  number  of  men  to  execute  the  treasonable  design  is 
an  overt  act  of  levying  war.  Not  so,  however,  un- 
less they  are  in  condition  to  carry  out  their  treason- 
able design.8 

The  quantum  of  the  force  employed  is  imma- 
terial.  This  is  generally  displayed  by  the  use  of  em-  ?aercy. 
ployment  of  arms  and  military  array,  but  these  are 
not  indispensably  requisite.9  There  must,  however, 
be  in  all  cases  some  unequivocal  act  of  resistance, 
which,  in  its  nature,  shows  a  purpose  to  resort,  if 
necessary,  to  conflict  with  the  government.1 

The  seizure  of  a  fort  or  arsenal  by  a  body  of  what 
men;2  holding  the  same;3  the  mere  cruising  of 
an  armed  vessel,  though  no  ships  are  encountered  ;  4 
the  marching  of  a  body  of  men  immediately  to  per- 
form their  treasonable  design;  the  moving  from  a 
particular  to  a  general  place  of  rendezvous,  are  all 

T  Rex  v.  Regicides,  (1660)  5  How.  St.  Tr.  1224;  Reg.  v.  McCaf- 
ferty,  (1867)  10  Cox  C.  C.  603;  Rex  v.  Dammaree,  (1710)  15  How. 
St.  Tr.  609. 

8U.  S.  v.  Burr,  (1807)  25  Fed.  Cas.  No.  14,693. 

»  Messenger's  Trial,  J.  Kel.  70,  and  cases  above  cited. 

iHawk.  P.  C.  55,  and  cases  of  U.  S.  v.  Burr  and  others,  above 
cited. 

2  Charge  to  Grand  Jury,  (1861)   1  Sprague   (U.  S.)  602;  Charge 
to  Grand  Jury,    (1861)    4  Blatchf.    (U.  S.)    518,  30  Fed.  Cas.  No. 
18,270. 

3  Foster's  Crown  Law  208. 

*U.  S.  v.  Greiner,  (1861)  4  Phila.  (Pa.)  396,  18  Leg.  Int.  (Pa.) 
149;  Rex  v.  Vaughan,  (1696)  13  How.  St.  Tr.  486. 


86 


CITIZENSHIP 


Chapter 
III. 


Rioting 
and  levy- 
ing war 
distin- 
guished. 


unequivocal  acts  of  levying  war.  The  design  need 
not  be  to  overthrow  the  entire  government.  It  is 
sufficient  if  it  contemplates  the  overthrow  of  govern- 
ment or  the  suppression  of  laws  in  a  particular 
locality,  or  even  the  coercion  of  the  government  in 
state  matters  or  acts  of  sovereignty.5  If  the  demon- 
stration be  only  to  subserve  some  private  purpose, 
such  as  individual  profit,  the  removal  of  a  particular 
nuisance,  a  private  quarrel,  or  a  demonstration  of 
the  strength  and  number  of  a  political  party  to  pro- 
cure the  liberation  or  mitigation  of  punishment  of 
political  prisoners,  the  offense  is  not  treason.6 

While  rioting  and  the  levying  of  war  against  the 
government  are  closely  allied,  there  is  a  distinction. 
In  riots  the  object  of  the  disturbances  is  to  satisfy 
a  particular  grievance ;  in  treason  the  intention  is  to 
overthrow  the  government.7  The  question  is  always 
one  of  intention,  to  be  gathered  from  the  particular 
transaction.  The  English  doctrine  of  constructive 
levying  of  war,  which  holds  various  forms  of  rioting 
to  be  in  effect  levying  war  against  the  government, 

BU.  S.  v.  Greathouse,  (1863)  2  Abb.  (U.  S.)  364;  Charge  to 
Grand  Jury,  (1842)  1  Story  (U.  S.)  614;  Homestead  Case,  (1892) 
1  Pa.  Dist.  785;  U.  S.  v.  Vigol,  (1795)  2  Dall.  (U.  S.)  346;  Ex  p. 
Bollman,  (1807)  4  Cranch  (U.  S.)  75. 

"  In  respect  to  the  treasonable  design,  it  is  not  necessary  that  it 
should  be  a  direct  and  positive  intention  entirely  to  subvert  or 
overthrow  the  government.  It  will  be  equally  treason,  if  the  in- 
tention is  by  force  to  prevent  the  execution  of  any  one  or  more  gen- 
eral and  public  laws  of  the  government,  or  to  resist  the  exercise  of 
any  legitimate  authority  of  the  government  in  its  sovereign  capacity." 
Charge  to  Grand  Jury,  (1842)  1  Story  (U.  S.)  616. 

«U.  S.  V.  Hanway,  (1851)  2  Wall.  Jr.  (C.  C.)  205,  and  cases 
above  cited. 

7  1  Hale  P.  C.  145. 

"  When  the  object  of  an  insurrection  is  of  a  local  or  private 
nature,  not  having  a  direct  tendency  to  destroy  all  property  and  all 


CITIZENSHIP  gj 


has  not  been  favorably  regarded  by  the  American  chapter 
judiciary.  It  was  thought  to  be  too  great  a  stretch  ' 
of  the  constitutional  definition  of  treason,  and  in  the 
case  of  United  States  v.  Hanway  (supra)  Mr.  Jus- 
tice Grier  said:  "The  better  opinion  there  [in 
England]  at  present  seems  to  be  that  the  term  i  levy- 
ing war'  should  be  confined  to  insurrections  and  re- 
bellions for  the  purpose  of  overturning  the  govern- 
ment by  force  and  arms.  Many  of  the  cases  of 
constructive  treason  quoted  by  Foster,  Hale,  and 
other  writers  would  perhaps  now  be  treated  merely 
as  aggravated  riots  or  felonies." 

The  words  "adhering  to  enemies"  have  received  who  arc 

enemies. 

frequent  construction.8  The  term  "enemies,"  as 
used  in  the  Constitution,  applies  only  to  the  subjects 
of  a  foreign  power  in  a  state  of  open  hostility  to  this 
country.  The  inhabitants  of  a  neutral  country  may, 
by  participation  in  acts  of  hostility,  become  enemies, 
but  they  are  so  regarded  only  while  so  engaged. 
Even  upon  capture  neutrals  cease  to  be  enemies, 
and  become  entitled  to  the  rights  of  subjects  of  a 
neutral  country.9 

government  by  numbers  and  armed  force,  it  will  not  amount  to 
treason;  and  in  these  and  other  cases  that  occur,  the  true  criterion 
is  the  intention  with  which  the  parties  assembled/'  U.  S.  V.  Hoxie, 
(1808)  1  Paine  (U.  S.)  271. 

s  Rex  v.  Vaughan,  (1696)  13  How.  St.  Tr.  525;  Charge  to  Grand 
Jury,  (1861)  1  Sprague  (U.  S.)  607. 

»  Sparenburgh  v.  Bannatyne,  (1797)   1  B.  &  P.  163. 

The  character  of  alien  enemy  arises  from  the  party  being  under 
the  allegiance  of  the  state  at  war  with  us;  the  allegiance  being  per- 
manent, the  character  is  permanent,  and  on  that  ground  he  is  alien 
enemy,  whether  in  or  out  of  prison.  But  a  neutral,  whether  in  or 
out  of  prison,  cannot,  for  that  reason,  be  an  alien  enemy;  he  can 
l)e  alien  enemy  only  with  respect  to  what  he  is  doing  under  a  local 
or  temporary  allegiance  to  a  power  at  war  with  us.  When  the 


gg  CITIZENSHIP 


Chapter         The  words  "adhering,"  "giving  aid  and  com- 
-  fort, ' '  have  also  been  construed.    Joining  the  enemy 

?ndingcomd  Curing  time  of  war  is  a  most  emphatic  way  of  giving 
fort*  aid  and  comfort  to  the  enemy.1  Nothing  can  excuse 
that  offense  except  compulsion  under  fear  of  imme- 
diate death.2  The  burden  of  proof  in  such  case  is 
on  the  accused.  He  must  prove  not  only  coercion, 
but  that  he  quitted  the  enemy's  service  as  soon  as 
possible.  Giving  aid  and  comfort  to  the  enemy, 

allegiance  determines,  the  character  determines.    Sparenburgh  v.  Ban- 
natyne,  (1797)  1  B.  &  P.  163. 

"  The  term  *  enemies/  as  used  in  the  second  clause,  according  to 
its  settled  meaning  at  the  time  the  Constitution  was  adopted,  applies 
only  to  the  subjects  of  a  foreign  power  in  a  state  of  open  hostility 
with  us.  It  does  not  embrace  rebels  in  insurrection  against  their 
own  government.  An  enemy  is  always  the  subject  of  a  foreign 
power  who  owes  no  allegiance  to  our  government  or  country."  U.  S. 
V.  Greathouse,  (1863)  2  Abb.  (U.  S.)  372,  per  Field,  J. 

The  duty  of  allegiance  to  the  United  States  owed  by  a  citizen  of 
one  of  the  southern  States,  at  a  time  when  its  revolutionary  seces- 
sion was  threatened  but  had  not  been  consummated,  could  not  be 
affected  by  any  conflicting  and  forced  allegiance  to  the  State.  He 
could  not  then,  as  a  citizen  of  the  State,  pretend  to  be  a  public 
enemy  of  the  United  States,  in  any  sense  of  the  word  "enemy" 
which  distinguishes  its  legal  meaning  from  that  of  traitor.  U.  S. 
V.  Greiner,  (1861)  4  Phila.  (Pa.)  396,  18  Leg.  Int.  (Pa.)  149. 

i  Gordon's  Case,  (1746)  1  East  P.  C.  71;  M'Growther's  Case, 
(1746)  1  East  P.  C.  71,  Foster's  Crown  Law  13;  U.  S.  v.  Greiner, 
(1861)  4  Phila.  (Pa.)  396,  18  Leg.  Int.  (Pa.)  149. 

"  The  words  in  the  definition,  '  adhering  to  their  enemies/  seem 
to  have  no  special  significance,  as  the  substance  is  found  in  the  words 
which  follow  —  'giving  them  aid  and  comfort/"  Charge  to  Grand 
Jury,  (1861)  1  Bond  (U.  S.)  609. 

"  In  general,  when  war  exists,  any  act  clearly  indicating  a  want 
of  loyalty  to  the  government,  and  sympathy  with  its  enemies,  and 
which,  by  fair  construction,  is  directly  in  furtherance  of  their  hos- 
tile designs,  gives  them  aid  and  comfort.  Or,  if  this  be  the  natural 
effect  of  the  act,  though  prompted  solely  by  the  expectation  of  pecu- 
niary gain,  it  is  treasonable  in  its  character."  Charge  to  Grand, 
Jury,  (1861)  1  Bond  (U.  S.)  611,  30  Fed.  Cas.  No.  18,272. 

2 Hawk.  P.  C.  54;  Respublica  V.  M'Carty,   (1781)    2  Dall.   (Pa.) 


CITIZENSHIP  89 


such  as  supplying  to  the  enemy  arms,  ammunition,  chapter 
provisions,  etc.,  is  evidence  of  lack  of  loyalty.  Any 
material  assistance  to  enemies  or  rebels  is  treason.3 
Communicating  with  or  advising  the  enemy,  or 
furnishing  him  with  valuable  information,  even 
where  the  letters  are  intercepted,  is  an  act  of  trea- 
son.4 And  delivering  a  fort  by  bribery  or  other 
sympathy  with  the  enemy  is  direct  assistance  to  the 
enemy.5  It  is  otherwise  when  such  an  act  is  the  re- 
sult of  cowardice  or  imprudence.  Even  that  act  is, 
however,  punishable  by  martial  law.  Cruising  on 
an  armed  vessel  which  belongs  to  the  hostile  coun- 
try is  an  overt  act  of  aid  and  comfort  to  the  enemy. 
All  of  the  above  instances  being  necessarily  direct 

86;  U.  S.  v.  Vigol,  (1795)  2  Dall.  (U.  S.)  346;  Trial  of  Regicides, 
J.  Kel.  13. 

"  In  the  eye  of  the  law,  nothing  will  excuse  the  act  of  joining 
an  enemy  but  the  fear  of  immediate  death;  not  the  fear  of  any 
inferior  personal  injury,  nor  the  apprehension  of  any  outrage  upon 
property."  Respublica  v.  M'Carty,  (1781)  2  Dall.  (Pa.)  86. 

3  Foster's  Crown  Law,  217;  U.  S.  v.  Pryor,  (1814)  3  Wash. 
(U.  S.)  234;  U.  S.  v.  Burr,  (1807)  25  Fed.  Gas.  No.  14,693;  Charge 
to  Grand  Jury,  (1861)  1  Bond  (U.  S.)  609,  30  Fed.  Cas.  18,272; 
Hanauer  v.  Doane,  (1870)  12  Wall.  (U.  S.)  347;  Carlisle  v.  U.  S., 
(1872)  16  Wall.  (U.  S.)  147. 

"He  who,  being  bound  by  his  allegiance  to  a  government,  sells 
goods  to  the  agent  of  an  armed  combination  to  overthrow  that  gov- 
ernment, knowing  that  the  purchaser  buys  them  for  that  treasonable 
purpose,  is  himself  guilty  of  treason  or  a  misprision  thereof.  He 
voluntarily  aids  the  treason.  He  cannot  be  permitted  to  stand  on 
the  nice  metaphysical  distinction  that,  although  he  knows  that  the 
purchaser  buys  the  goods  for  the  purpose  of  aiding  the  rebellion,  he 
does  not  sell  them  for  that  purpose.  The  consequences  of  his  acts 
are  too  serious  and  enormous  to  admit  of  such  a  plea.  He  must  be 
taken  to  intend  the  consequences  of  his  own  voluntary  act."  Han- 
auer v.  Doane,  (1870)  12  Wall.  (U.  S.)  342;  see  also  Carlisle  t?. 
U.  S.,  (1872)  16  Wall.  (U.  S.)  147. 

*  Foster's  Crown  Law,  217;  Rex  V.  Gregg,  (1708)  14  How.  St. 
Tr.  1376. 

B  1  Hale  P.  C.  168. 


90  CITIZENSHIP 


chapter    attacks  on  his  government  by  the  citizen,  his  motive 
is  immaterial.6 


Treason  being  a  crime  peculiar  in  its  nature,  to 
which  there  is  not  attached  the  odium  or  disrepute 
connected  with  other  felonies,  evidence  tending  to 
show  former  good  reputation  has  not  the  same 
weight  as  it  may  have  in  ordinary  crimes,  like  bur- 
glary or  arson,  as  tending  to  show  the  improbability 
of  the  prisoner's  commission  of  the  offense,  since 
the  purest  motives  indulged  in  by  the  most  honor- 
able men  are  not  inconsistent  with  the  offense  of 
treason.  This  was  said  in  Dammaree's  Case.7 
But  it  is  not  a  satisfactory  reason.  For  more 
odium  and  disrepute  are  attached  to  the  crime  of 
treason  than  to  any  other  known  to  the  law.  It  is 
true  that  it  is  a  peculiar  crime  and  has  sometimes 
manifested  itself  in  men  who,  prior  to  its  commis- 
sion, had  seemed  above  such  baseness  ;  whereas  the 
commission  of  burglary  or  arson  is  generally  the 
culmination  of  a  previously  bad  record.  And  this 
is  about  all  that  can  be  said  of  the  reason  for  the 
distinction. 

Consideration  of  the  evidence  required  to  prove 
principals,   treason,  and  of  the  defense,  is  omitted  as  beyond  the 
scope  of  this  treatise,  and  the  subject  may  be  con- 

e  Charge  to  Grand  Jury,  (1861)  1  Bond  (U.  S.)  609,  30  Fed. 
Cas.  No.  18,272;  Hanauer  v.  Doane,  (1870)  12  Wall.  (U.  S.)  342; 
Sprott  v.  U.  S.,  (1874)  20  Wall.  (U.  S.)  459;  Carlisle  v.  U.  S., 
(1872)  16  Wall.  (U.  S.)  147. 

The  motives  by  which  a  prisoner  in  the  hands  of  the  enemy, 
seeking  means  of  escape,  was  induced  to  attempt  the  commission 
of  an  act  constituting  the  crime  of  treason,  and  by  which  there  are 
the  strongest  reasons  to  believe  that  he  was  most  sincerely  actuated, 
would  certainly  palliate  the  enormity  of  the  crime.  U.  S.  v.  Pryor, 
(1814)  3  Wash.  (U.  S.)  234. 

7  Rex  v.  Dammaree,    (1710)    15  How.  St.  Tr.  604. 


CITIZENSHIP 


eluded  with  the  remark  that  treason  is  a  crime  of  so    chapter 
high  a  nature  that  it  does  not  admit  of  accessories,       IIL 
but  all  who  are  in  any  way  connected  with  it  are 
principals.8 

s  As  respects  the  order  of  trial,  however,  the  whole  reason  of 
the  law,  relative  to  the  principal  and  the  accessory,  seems  to  apply  in 
full  force  to  a  case  of  treason  committed  by  one  body  of  men  in 
conspiracy  with  others  who  are  absent.  Whether  the  adviser  of  an 
assemblage  be  punishable  with  death  as  a  principal  or  as  an  acces- 
sory, his  liability  to  punishment  depends  upon  the  degree  of  guilt 
attached  to  an  act  which  has  been  perpetrated  by  others ;  and  which, 
if  it  be  a  criminal  act,  renders  them  guilty  also.  His  guilt,  there- 
fore, depends  on  theirs;  and  their  guilt  cannot  be  legally  established 
in  a  prosecution  against  him.  Per  Marshall,  C.  J.,  in  U.  S.  v.  Burr, 
(1807)  25  Fed.  Gas.  No.  14,693. 

For  a  valuable  citation  of  authorities  concerning  the  elements 
constituting  treason,  the  proofs  necessary  to  establish  it,  and  the 
defenses  thereto,  see  Vol.  28,  Am.  &  Eng.  Encyc.  of  Law  (2d  Ed.) 
457^71. 


CHAPTER  IV. 

OF   THE   BIGHTS,   PRIVILEGES,   AND   IMMUNITIES   OF   THE 

CITIZEN. 

Chapter    nnHE  rights,  privileges,  and  immunities  now  en- 

IV>         I       joyed  by  citizens  of  the  States  composing  the 

origin  of  United    States,    whether   as    citizens    of    the 

rights, 

fegS  and  States  or  of  the  United  States,  originated  in  rights 
possessed  or  claimed  by  the  inhabitants  of  the  thir- 
teen American  colonies,  while  they  were  dependen- 
cies of  Great  Britain.  The  struggle  of  the  Ameri- 
can colonists  for  independence  was  based  upon  the 
claim  that  they  were  denied,  by  the  parent  govern- 
ment, rights,  privileges,  and  immunities  which  were 
their  common  heritage  as  British  freemen,  or  which 
had  from  time  to  time  been  granted  specifically  to 
the  American  colonies. 

No  written  chart  in  existence,  then  or  now,  has 
ever  attempted  to  enumerate,  classify,  and  define  in 
one  succinct  expression,  the  rights,  liberties,  and 
franchises  possessed  by  English  subjects,  nor  is  it 
the  purpose  of  this  volume  to  attempt  to  do  that. 
It  is  sufficient  to  say  that  the  liberties  and  right  of 
self-government  of  the  British  people,  beginning  with 
the  declarations  of  Magna  Charta,  have  been  ascer- 
tained and  declared  from  time  to  time,  during  six 
centuries  of  conflict  between  the  people  of  the  Brit- 
ish realm  and  their  successive  sovereigns,  until  they 
are  now  well  established  and  quite  thoroughly  under- 
stood. 

92 


CITIZENSHIP  93 

Notwithstanding  the  British  people  have  retained    Chapter 
in  their  government  the  form  of  a  limited  monarchy, 


they  have  established  for  themselves,  as  against  their 
constitutional  monarch,  a  measure  of  popular  sov-  united  the 
ereignty  and  personal  liberty  as  great  as  that  pos- 
sessed by  any  other  people  in  the  world.  Our  boast 
is  that  ours  is  a  free  republic;  that  it  is  doubtful 
whether,  although  we  have  a  president  instead  of 
a  king,  and  a  supreme  court  with  certain  power 
to  control  both  executive  and  legislative  action,  the 
King  of  England,  on  the  whole,  possesses  as  much 
independent  authority  as  the  President  of  the  United 
States. 

Although  the  struggle  of  the  American  colonists  }£**£? 
was  based  upon  the  claim  that  the  parent  govern-  Colonies- 
ment  denied  the  inhabitants  of  the  colonies  the  guar- 
anteed rights  of  British  citizens,  the  American  colo- 
nists, even  under  British  dominion,  were  accorded 
and  actually  enjoyed  many  rights,  privileges,  and 
franchises,  peculiar  to  themselves,  not  enjoyed  by 
Englishmen  at  home,  or  even  of  British  origin;  some 
of  which  have  not,  to  this  day,  been  adopted  in  their 
entirety  in  England. 

Source  of  American  Plan  of  Government  and  Rights 
of  Citizenship. 

Many  of  the  declarations  of  popular  rights  set  ™cee  >" 
forth  in  the  American  Declaration  of  Independence  Holland 
were  of  rights  which  were  not  of  English  origin. 
The  American  colonists  had  become  familiar  with 
the  rights  of  citizenship  possessed  in  other  countries, 
both  from  the  fact  that  some  of  them  resided  in  Hol- 
land for  a  time,  before  they  came  to  America,  and 


94  CITIZENSHIP 


Chapter  from  the  further  fact  that  the  New  York  colony  was 
essentially  Dutch  in  its  original  settlement  and  gov- 
ernment. It  is  plain  to  see,  by  comparison  with 
other  historic  documents,  that  the  Declaration  of  In- 
dependence of  1776  was  modeled,  to  a  large  extent, 
not  upon  English  precedents,  but  upon  the  written 
constitution  of  the  Netherlands  Republic,  called 
11  The  Union  of  Utrecht, "  of  1579. 

The  manifesto  issued  by  the  rebels  at  the  time  of 
Bacon's  Rebellion  in  Virginia  in  1676  contains  much 
from  the  same  source.  The  Union  of  Utrecht  and 
Bacon's  Rebellion  antedated,  one  by  one  hundred 
years  and  the  other  by  three  years,  the  Exclusion 
Act  of  1679,  by  which  James  II  of  England  was 
deposed,  and  which,  by  some  writers,  has  been 
referred  to  as  the  source  from  which  the  claims  set 
forth  in  the  Declaration  of  Independence  were 
derived. 

Nor  did  the  American  ideas  of  a  written  con- 
frormeEng-  stitution  and  a  supreme  court  emanate  altogether 
instances,  from  Englishmen.  They  were  the  results  of  the 
cooperative  labors  of  Puritans  and  Cavaliers,  Dutch- 
men, Huguenots,  and  Scotch-Irishmen,  assembled  in 
convention  in  America,  working  for  a  common  end, 
upon  models  derived  from  many  countries  with 
whose  governments  they  were  familiar.  For  exam- 
ple, the  demand  for  the  separation  of  Church  and 
State,  which  is  a  leading  tenet  of  American  govern- 
ment, is  not  of  British  origin.  Virginia  was  fore- 
most in  this  contention.  She  abolished  tithes  and 
forfeited  glebe  lands.  The  change  was  brought 
about  through  the  influence  of  Patrick  Henry,  a 
Scotch  dissenter;  and  of  Thomas  Jefferson,  a  man 


CITIZENSHIP  95 


of  Welsh  origin,  with  views  derived  from  a  study  chapter 

of  Dutch  precedents.  ! — 

So,  too,  the  abolition  of  privileged  classes  was 
distinctly  anti-English. 

The  American  system  of  land  tenures,  the  aboli- 
tion  of  entails  and  primogenitures,  and  our  methods 

of  transfer  of  real  estate,  are  all  anti-English  in  prosecu- 

7  tors. 

their  origin.  Entails  and  primogenitures  were  cher- 
ished institutions  of  England.  Our  system  of  trans- 
ferring real  estate  by  the  registration  of  deeds  came 
from  Holland,  and  has  not,  even  to  the  present  day, 
been  fully  adopted  in  England.  Our  laws  govern- 
ing the  transfer  of  personal  property  and  our  whole 
system  of  mercantile  law  are  adaptations  of  Conti- 
nental and  Koman  methods,  modified  so  as  to  make 
them  applicable  to  our  modern  conditions.  We  owe 
nothing  to  England  for  our  system  of  elections  or 
for  our  public  prosecutors.  The  idea  of  a  public 
prosecutor  or  commonwealth's  attorney  came  from 
Holland. 

Our  system  of  charitable  institutions,  hospitals, 
and  prisons  is  not  modeled  upon  English  prece- 
dents.  The  charitable  institutions,  hospitals,  and 
prisons  of  the  colonies  antedated  those  in  England. 
The  first  of  these  established  in  the  American  colo- 
nies were  copied  from  Dutch  models,  and  the  admir- 
able system  now  existing  in  England  is  derived 
largely  from  a  study  and  adoption  of  those  which 
were  first  established  in  the  Dutch  colony  of  New 
York  and  in  the  Quaker  colony  of  Pennsylvania. 

So,  too,  the  American  citizen  derived  his  princi-  Religious 

toleration. 

pies  of  religious  toleration,  not  from  England,  but 
from  the  Dutch.  As  late  as  1663,  when  the  repre- 


96  CITIZENSHIP 


chapter  sentatives  of  the  Crown  in  the  English  colonies  were, 
under  orders  from  England,  persecuting  Quakers 
and  Anabaptists  and  demanding  that  they  take  the 
oath  of  allegiance  and  conformity  or  suffer  punish- 
ment; when  Puritans  were  driving  Pilgrims  from 
Massachusetts  into  Ehode  Island,  and  Virginians 
placing  the  King's  broad  arrow  on  the  houses  of 
dissenters  in  Maryland,  the  Dutch  colony  of  New 
York  was  receiving  orders  from  Amsterdam  pro- 
claiming that  the  conscience  of  men  ought  to  remain 
free.  The  orders  read:  "Let  every  one  remain 
free  as  long  as  he  is  modest,  moderate,  his  political 
conduct  irreproachable,  and  as  long  as  he  does  not 
offend  others  or  oppose  the  government."1  This 
was  twenty  years  before  Penn  came  to  America,  and, 
even  after  he  came,  the  Scotch-Irish  and  Germans 
were  driven  from  Pennsylvania  by  Logan's  oppress- 
ive administration  of  the  Quaker  laws,  and  sought 
asylum  in  the  Shenandoah  valley  of  Virginia. 

The  Pilgrims  in  Ehode  Island  proscribed  Cath- 
olics and  deprived  them  of  suffrage,  on  account  of 
their  religion,  from  1719  to  1783. 

Mr.  Madison  is  authority  for  the  statement  that 
the  example  of  Holland  led  to  the  constitutional  pro- 
vision forbidding  Congress  from  making  any  enact- 
ment "respecting  an  establishment  of  religidn"  or 
abridging  the  freedom  of  the  press. 

Perhaps  there  is  no  other  thing  in  which  the 
citizen  of  the  United  States  takes  greater  pride  than 
in  our  system  of  public  education.  The  privilege 
of  public-school  education  for  his  children  is  pos- 
sessed by  every  citizen  of  the  United  States  in  the 

iBroadhead's  History  of  New  York,  1770. 


CITIZENSHIP  97 


State  of  which  he  is  a  citizen,  no  matter  how  humble 
or  ignorant  he  may  be  or  how  limited  his  own  rights. 
This  privilege,  like  the  others  named,  is  distinctly 
not  of  English  origin.  At  the  time  of  the  departure 
of  the  original  colonists  from  England  for  America, 
no  system  of  public  education  existed  in  Great 
Britain.  None  exists  there  to-day,  comparable,  in 
thoroughness,  with  our  own.  Long  residence  in  Hol- 
land made  some  of  the  earliest  American  settlers 
familiar  with  the  benefits  of  public  education  and  the 
advantages  of  the  free  school  system  of  the  Dutch. 
But  a  thorough  system  of  free  education  was  in- 
stalled in  the  Dutch  colony  of  New  York  fully  twenty 
years  before  any  school  system  was  adopted  by  the 
New  England  colony.  Sparseness  of  population  in 
the  southern  colonies  rendered  free  schools  almost 
impracticable  there.  But  they  were  established  in 
the  populous  Dutch  communities  and  among  the 
Scotch-Irish  of  the  Shenandoah  valley  in  Virginia, 
from  the  time  of  the  earliest  settlements  there. 

Notwithstanding    the    southern    colonies    were  School 

lands 

backward,  the  greatest  impetus  to  public  education  {f0jjjjw-t 
in  the  Northwest  Territory,  after  the  colonies  were  Terntory- 
independent,  came  from  the  southern  section;  for 
when  Virginia  ceded  her  rights  in  the  Northwest 
Territory  to  the  Federal  government,  she  demanded 
through  her  representatives  in  Congress,  Eichard 
Henry  Lee  and  Paul  Carrington,  the  condition  in 
the  Ohio  ordinances  of  1787,  requiring  that  alternate 
sections  of  the  public  lands  should  be  dedicated  to 
purposes  of  public  education.2 

2  "The  practice  of  setting  apart  section  No.  16  of  every  town- 
ship of  public  lands,  for  the  maintenance  of  public  schools,  is  trace- 
able to  the  ordinance  of  1785,  being  the  first  enactment  for  the 

7 


98  CITIZENSHIP 


Chapter  Having  now  traced  the  ideas  of  the  American 
IV<  colonists  concerning  plans  of  government  and  rights 
of  citizenship  to  the  sources  whence  they  sprung, 
let  us  next  consider  how  far  these  rights  have  been 
incorporated  in  the  governments  which  they  estab- 
lished.3 

Rights  of  Citizens  of  the  States. 

Let  us  first  examine  the  rights  of  citizens  as  citi- 
zens of  the  States;  for  these  clearly  antedate  what- 
ever rights  they  possess  as  citizens  of  the  United 
States,  by  a  period  equal  to  that  which  elapsed  be- 
tween the  acknowledgment  of  the  independence  of  the 
thirteen  independent  colonies  by  Great  Britain,  and 
the  formation  of  the  Union  by  the  States  themselves. 
2i°umer"en        No  State  in  the  Union  has  ever  sought  to  embody 
rights?*       in  one  written  chart  a  full  expression  of  all  the  rights, 
privileges,  and  immunities  of  its  citizens.     Nor  will 

disposal  by  sale  of  the  public  lands  in  the  western  territory.  The 
appropriation  of  public  lands  for  that  object  became  a  fundamental 
principle  by  the  ordinance  of  1787,  which  settled  terms  of  compact 
between  the  people  and  States  of  the  northwestern  territory,  and 
the  original  States,  unalterable  except  by  consent.  One  of  the  arti- 
cles affirmed  that  '  religion,  morality,  and  knowledge,  being  neces- 
sary for  good  government  and  the  happiness  of  mankind/  and 
ordained  that  'schools,  and  the  means  of  education,  should  be  for- 
ever encouraged/  This  principle  was  extended,  first  by  congres- 
sional enactment  (1  Stat.  at  Large,  550,  §6),  and  afterward,  in 
1802,  by  compact  between  the  United  States  and  Georgia,  to  the 
southwestern  territory.  The  earliest  development  of  this  article, 
in  practical  legislation,  is  to  be  found  in  the  organization  of  the 
State  of  Ohio,  and  the  adjustment  of  its  civil  polity,  according  to 
the  ordinance,  preparatory  to  its  admission  to  the  Union."  Cooper 
v.  Roberts,  (1855)  18  How.  (U..S.)  177. 

3  So  persuasive  of  all  our  early  acts  were  the  examples  of  the 
Dutch  that  even  our  national  emblem  is  singularly  like  the  flag 
of  the  United  Netherlands. 


CITIZENSHIP  99 


the  attempt  now  be  made.     On  this  subject  we  shall    Chapter- 
content  ourselves  with  the  language  of  Mr.  Justice  ! — 

Washington,  construing  Section  2  of  Article  IV  of 
the  Constitution  of  the  United  States,  which  pro- 
vides: "Citizens  of  each  State  shall  be  entitled  to 
all  privileges  and  immunities  of  citizens  in  the  sev- 
eral States. "  He  said: 

"The  inquiry  is,  What  are  the  privileges  and  wishing. 
immunities  of  citizens  in  the  several  States?    We  c°an?ssifi- 

cation. 

feel  no  hesitation  in  confining  these  expressions  to 
those  privileges  and  immunities  which  are  in  their 
nature  fundamental,  which  belong  of  right  to  the 
citizens  of  all  free  governments,  and  which  have  at 
all  times  been  enjoyed  by  the  citizens  of  the  several 
States  which  compose  this  Union,  from  the  time  of 
their  becoming  free,  independent,  and  sovereign. 
What  these  fundamental  principles  are,  it  would 
perhaps  be  more  tedious  than  difficult  to  enumerate. 
They  may,  however,  be  all  comprehended  under  the 
following  general  heads:  protection  by  the  govern- 
ment; the  enjoyment  of  life  and  liberty,  with  the 
right  to  acquire  and  possess  property  of  every  kind, 
and  to  pursue  and  obtain  happiness  and  safety; 
subject,  nevertheless,  to  such  restraints  as  the  gov- 
ernment may  justly  prescribe  for  the  general  good 
of  the  whole/'4 

Mr.  Justice  Miller,  in  the  Slaughter-House 
Cases,5  said,  with  reference  to  this  observation  of 
Mr.  Justice  Washington: 

^Corfield  v.  Coryell.     (1823)    4   Wash.    (U.   S.)    371.     See   also 
Ward  V.  Maryland,  (1870)   12  Wall.   (U.  S.)  430. 
«16  Wall,  (U.  S.)  7«. 
"The  Constitution  does  not  define  the  privileges  and  immunities 


100  CITIZENSHIP 


€hapter         "The  description,  when  taken  to  include  others 

TV 

.  not   named,   but  which   are   of  the    same   general 

character,  embraces  nearly  every  civil  right  for  the 
establishment  and  protection  of  which  organized 
government  is  instituted." 

While  it  is  undoubtedly  true  that  the  attempt  to 
enumerate  these  rights  of  citizenship  would  be  more 
tedious  than  difficult,  and  while  it  may  be  unneces- 
sary to  enumerate  and  classify  them,  especially  as 
the  order  of  their  enumeration  varies  in  the  different 
States,  it  seems  proper  to  advert  to  the  earlier  ex- 
pressions in  the  first  bill  of  rights  framed  by  one 
of  the  original  States,  to  ascertain  what  our  Eevo- 
lutionary  forefathers  conceived  to  be  the  most 
important  of  the  rights  for  which  they  were 
contending. 

State  Bills  of  Rights. 

£niaVBm  The  Bill  of  Eights  of  Virginia,  drafted  by  George 
of  Rights.  Mason?  is  perhaps  the  most  famous  of  all  these  bills 
of  rights,  and  may  be  taken  as  an  example,  as  it 
was  made  the  model  of  many  States  afterwards 
formed.  It  was  unanimously  adopted  by  the  Vir- 
ginia convention,  June  12,  1776.6  It  recites  the 
following  as  basic  and  foundational  principles  of 
government,  and  declares  that  they  pertain  to  the 
good  people  of  the  commonwealth  and  their  pos- 
terity : 

e^an?"         1-     Tnat  a11  men  are  ^  nature  equally  free,  in- 
dependent,  and  have  certain  inherent  rights, 

of  citizens.  For  that  definition  we  must  look  elsewhere."  Minor  v. 
Happersett,  (1874)  21  Wall.  (U.  S.)  170. 

Revised  Code  of  Virginia,  1819,  Vol.  I,  page  31. 


CITIZENSHIP 


of  which,  when  they  enter  into  a  state  of  chapter 
society,  they  cannot,  by  any  compact,  deprive 
or  divest  their  posterity;  namely,  the  enjoy- 
ment of  life  and  liberty,  with  the  means  of 
acquiring  and  possessing  property,  and  pur- 
suing and  obtaining  happiness  and  safety. 

2.  That  all  power  is  vested  in,  and  consequently 
derived  from,  the  people;  that  magistrates 
are  their  trustees  and  servants,  and  at  all 
times  amenable. 

3.  That  government  is,  or  ought  to  be,  instituted 

for  the  common  benefit,  protection,  and  se-  fhedma- 
curity  of  the  people,  nation,  or  community; 
of  all  the  various  forms  and  modes  of  gov- 
ernment, that  is  best  which  is  capable  of 
producing  the  greatest  degree  of  happiness 
and  safety,  and  is  most  effectually  secured 
against  the  danger  of  maladministration; 
and  that,  when  any  government  shall  be  found 
inadequate  or  contrary  to  these  purposes,  a 
majority  of  the  community  hath  an  indubi- 
table, unalienable,  and  indefeasible  right  to 
reform,  alter,  or  abolish  it  in  such  manner 
as  shall  be  judged  most  conducive  to  the 
public  weal. 

4.  That  no  man,  or  set  of  men,  are  entitled  to 
exclusive  or  separate  emoluments  or  privi- 
leges  from  the  community,  but  in  considera- 
tion   of    public    services;    which    not   being 
descendible,  neither  ought  the  offices  of  mag- 
istrate, legislator,  or  judge  to  be  hereditary. 

5.  That  the  legislative  and  executive  powers 
of  the  State  should  be  separate  and  distinct 


102 


CITIZENSHIP 


Chapter 
IV. 


Right  of 

suffrage. 


Suspen- 
sion of 
laws. 


Rights  of 

persons 

charged 

with 

crime. 


from  the  judiciary;  and,  that  the  members  of 
the  two  first  may  be  restrained  from  oppres- 
sion, by  feeling  and  participating  the  bur- 
thens of  the  people,  they  should,  at  fixed  pe- 
riods, be  reduced  to  a  private  station,  return 
into  the  body  from  which  they  were  origi- 
nally taken,  and  the  vacancies  be  supplied  by 
frequent,  certain,  and  regular  elections,  in 
which  all  or  any  part  of  the  former  members 
to  be  again  eligible,  or  ineligible,  as  the  laws 
shall  direct. 

6.  That  election  of  members  to  serve  as  repre- 
sentatives of  the  people,  in  assembly,  ought 
to  be  free;  and  that  all  men  having  sufficient 
evidence  of  permanent  common  interest  with 
and  attachment  to  the  community,  have  the 
right  of  suffrage,  and  cannot  be  taxed  or 
deprived  of  their  property  for  public  uses, 
without  their  own  consent,  or  that  of  their 
representatives  so  elected,  nor  bound  by  any 
law  to  which  they  have  not  in  like  manner 
assented  for  the  public  good. 

7.  That  all  power  of  suspending  laws,  or  the 
execution  of  laws,  by  any  authority,  without 
consent  of  the  representatives  of  the  people, 
is  injurious  to  their  rights,  and  ought  not 
to  be  exercised. 

8.  That,  in  all  capital  or  criminal  prosecutions, 
a  man  hath  a  right  to  demand  the  cause  and 
nature  of  his  accusation,  to  be  confronted 
with  the  accusers  and  witnesses,  to  call  for 
evidence  in  his  favor,  and  to  a  speedy  trial 
by  an  impartial  jury  of  his  vicinage,  without 


CITIZENSHIP  1Q3 


whose  unanimous  consent  be  cannot  be  found    chapter 
guilty;  nor  can  be  be  compelled  to  give  evi-       IV> 
dence  against  himself ;  tbat  no  man  be  de- 
prived of  bis  liberty  except  by  tbe  law  of  tbe 
land,  or  tbe  judgment  of  bis  peers. 
9.    Tbat  excessive  bail  ougbt  not  to  be  required, 
nor  excessive  fines  imposed,  nor  cruel  and  * 
unusual  punishments  inflicted. 

10.  Tbat  general  warrants,  whereby  an  officer  or  ^J|rc^g. 
messenger  may  be  commanded  to  search  sus-  ures< 
pected  places  without  evidence  of  a  fact  com- 
mitted, or  to  seize  any  person  or  persons  not 
named,  or  whose  offense  is  not  particularly 
described  and  supported  by  evidence,  are 
grievous  and  oppressive  and  ought  not  to  be 
granted. 

11.  That,  in  controversies  respecting  property,  jjrjiviltria! 
and  in  suits  between  man  and  man,  the  an-  cases- 
cient  trial  by  jury  is  preferable  to  any  other, 

and  ought  to  be  held  sacred. 

12.  That  the  freedom  of  the  press  is  one  of  the  J/e3?°m 
great  bulwarks  of  liberty,  and  can  never  be  press' 
restrained  but  by  despotic  governments. 

13.  That  a  well-regulated  militia,  composed  of  JjfJymil~ 
the  body  of  the  people,  trained  to  arms,  is  power< 
the  proper,  natural,  and  safe  defense  of  a 

free  state;  that  standing  armies,  in  time  of 
peace,  should  be  avoided,  as  dangerous  to 
liberty;  and  that  in  all  cases  the  military 
should  be  under  strict  subordination  to,  and 
governed  by,  the  civil  power. 

14.  That  the  people  have  a  right  to  uniform  gov-  uniform 

govern- 

ernment;  and  therefore,  that  no  government  ment- 


104 


CITIZENSHIP 


Adherence 
to   funda- 
mental 
princi- 
ples. 


Religious 

freedom. 


Effect  on 
the     Decla- 
ration and 
Constitu- 
tion. 


separate  from,  or  independent  of,  the  gov- 
ernment of  Virginia  ought  to  be  erected  or 
established  within  the  limits  thereof. 

15.  That  no  free  government,  or  the  blessings  of 
liberty,  can  be  preserved  to  any  people,  but 
by  a  firm  adherence  to  justice,  moderation, 
temperance,  frugality,  and  virtue,  and  by  fre- 
quent recurrence  to  fundamental  principles. 

16.  That  religion,  or  the  duty  which  we  owe  to 
our  Creator,  and  the  manner  of  discharging 
it,  can  be  directed  only  by  reason  and  convic- 
tion, not  by  force  or  violence ;  and  therefore 
all  men  are  equally  entitled  to  the  free  exer- 
cise of  religion,  according  to  the  dictates  of 
conscience,  and  that  it  is  the  mutual  duty  of 
all  to  practice  Christian  forbearance,  love  and 
charity,  towards  each  other. 

This  immortal  declaration  of  the  principles  of 
popular  sovereignty  has  been  set  forth  at  length  be- 
cause it  embodies  in  itself  the  substance  of  all  similar 
declarations  in  the  other  colonial  conventions,  and 
was  either  incorporated  into  the  Declaration  of  In- 
dependence itself,  which  was  adopted  twenty-two 
days  later,  or  into  the  earliest  amendments  of  the 
Constitution  of  the  United  States.  Of  the  first  ten 
amendments  to  the  Constitution  of  the  United 
States,  which  may  be  considered  as  adopted  contem- 
poraneously with  the  Constitution  itself,  six  merely 
reaffirm  the  principles  enunciated  in  George  Mason's 
bill  of  rights. 

National  Declaration  of  Independence. 
When  we  come  to  a  study  of  the  Declaration  of 
Independence  itself  we  find  a  reassertion  of  princi- 


CITIZENSHIP  1Q5 


pies  concerning  the  equality  of  men,  their  unalien-    Chapter 
able  rights,  that  government  is  instituted  to  secure       IV> 
those  rights,  that  it  derives  its  just  powers  from  the 
consent  of  the  governed,  and  the  right  of  the  people, 
when  it  becomes  destructive  of  those  ends,  to  alter  l 
or  abolish  it  and  institute  a  new  government. 

After  declaring  that  long  established  govern- 
ments should  not  be  changed  for  light  and  transient 
causes,  it  proceeds  to  arraign  the  British  govern- 
ment for  a  long  train  of  abuses  and  usurpations. 
We  may  gather,  from  the  enumeration  of  those 
abuses,  the  following  claims  made  by  the  revolu- 
tionists concerning  the  rights,  privileges,  and  immu- 
nities of  citizens : 

1.  The  right  of  representation  in  the  legisla- 
ture, a  right  inestimable  to  them. 

2.  The  right  to  have  representative  bodies  as- 
sembled at  usual  and  comfortable  places  con- 
venient  to   the   depository   of   their   public 
records. 

3.  The  right  to  have  frequent  sessions  of  the 
legislature. 

4.  The  right  to  have  a  system  of  naturalization 
laws. 

5.  The  right  to  have  an  independent  judiciary. 

6.  The  right  to  oppose  a  multitude  of  offices. 

7.  The  right  to  oppose  standing  armies  in  time 
of  peace. 

8.  The  right  to  have  the  civil  power  superior  to 
the  military  power. 

9.  The   right   to    resist   quartering   of   armed 
troops  among  them. 

10.     The  right  to  trade  with  the  outside  world. 


106  CITIZENSHIP 


Chapter       n.    The  right  to  a  voice  in  taxation. 
IV'          12.    The  right  to  trial  by  a  jury  of  the  vicinage. 
13.    The  right  of  local  self-government. 

The  Federal  Constitution. 


have  already  seen  that  during  the  period  in 
thls  Arnt?-er  which  the  States  cooperated  under  articles  of  conf  ed- 


eration,  the  rights,  privileges,  and  immunities  of 

eratton.  7 

their  citizens  were  derived  exclusively  from  their 
respective  States,  and  that  the  power  of  the  United 
States  did  not  extend  to  the  control  of  the  individual, 
save  in  a  few  limited  and  specified  cases;  and  that 
as  then  constituted  the  United  States  did  not  at- 
tempt to  grant  or  guarantee  to  the  individual  citizen 
any  rights,  privileges,  or  immunities,  save  to  citi- 
zens of  one  State  in  another  State.7 

Extension         When,  upon  the  adoption  of  the  Federal  Consti- 

|eoyheun"  tution,  Federal  power  operated  directly  upon  individ- 

tution.        ua}  citizens  of  the  United  States,  the  number  of  Fed- 

eral guarantees  of  their  rights  was  extended  also. 

These  guarantees  were  the  necessary  correlatives 

of  the  specific  powers  granted  to  the  Federal  gov- 

ernment, and  are  the  supreme  law  of  the  land  on 

the  subjects  to  which  they  refer. 

7  "The  Confederation  was  a  league  of  friendship  of  the  States 
with  each  other,  so  declared  in  the  articles  and  entered  into  '  for 
their  common  defense,  the  security  of  their  liberties,  and  their 
mutual  and  general  welfare,  binding  themselves  to  assist  each  other 
against  all  force  offered  to  or  attacks  made  upon  them,  or  any  of 
them,  on  account  of  religion,  sovereignty,  trade,  or  any  other  pre- 
tense whatever.'  But  its  articles  did  not  form  a  constitution  or 
ordinance  of  government,  with  power  to  enforce  its  provisions  upon 
each  other,  or  even  a  compact  having  any  coherence  or  binding  force 
other  than  that  of  a  league  of  friendship,  which  its  members  only 
claimed  them  to  constitute."  Wharton  v.  Wise,  (1894)  153  U.  S. 
167. 


CITIZENSHIP  107 


tions  of 
Federal 
power. 


But  it  by  no  means  follows  from  this  that  the  chapter 
Federal  government  is  supreme  concerning  all  the 
rights,  privileges,  and  immunities  of  the  citizen.  On 
the  contrary,  while  it  is  supreme  in  its  sphere  and 
possesses  ample  authority  to  enforce  the  powers  ex- 
pressly delegated  to  it  by  the  Constitution,  it  is  only 
a  government  of  delegated  and  limited  powers,  and 
the  States,  in  forming  it,  expressly  retained  and  re- 
served in  themselves  the  absolute  control,  direction, 
and  sovereignty  over  their  citizens  concerning  a  vast 
residuum  of  rights,  privileges,  and  immunities 
which,  prior  to  the  adoption  of  the  Constitution,  they 
had  regulated  exclusively.8  For  instance,  it  has 
never  been  contended  that  the  Constitution,  as  orig- 
inally framed,  created  in  the  Federal  government 
any  power  to  establish  any  code  of  municipal  law  ap- 
plicable to  the  States  composing  it,  regulative  of  all 
private  rights  between  man  and  man  in  society,  or 
that  Congress  may  usurp  the  powers  of  State  legis- 
latures concerning  such  legislation.  The  Supreme 
Court  of  the  United  States  has  repeatedly  taken  oc- 
casion to  point  out  that  no  such  power  exists,  either 
under  the  original  Constitution  or  by  virtue  of  any 

s"  A  reasonable  interpretation  of  that  instrument  [the  Federal 
Constitution]  necessarily  leads  to  the  conclusion  that  the  powers  so 
granted  are  never  exclusive  of  similar  powers  existing  in  the  States, 
unless  where  the  Constitution  has  expressly,  in  terms,  given  an 
exclusive  power  to  Congress,  or  the  exercise  of  a  like  power  is  pro- 
hibited to  the  States,  or  there  is  a  direct  repugnancy  or  incompati- 
bility in  the  exercise  of  it  by  the  States.  The  example  of  the  first 
class  is  to  be  found  in  the  exclusive  legislation  delegated  to  Congress 
over  places  purchased  by  the  consent  of  the  legislature  of  the  State 
in  which  the  same  shall  be,  for  forts,  arsenals,  dock-yards,  etc.;  of 
the  second  class,  the  prohibition  of  a  State  to  coin  money  or  emit 
bills  of  credit;  of  the  third  class,  as  this  court  have  already  held, 
the  power  to  establish  an  uniform  rule  of  naturalization,  and  the 
delegation  of  admiralty  and  maritime  jurisdiction.  In  all  other 


108 


CITIZENSHIP 


Chapter 
IV. 


Construc- 
tion  of 
the    consti- 
tutional 
amend- 
ments. 


of  the  amendments.8*  As  we  shall  see  later,  a  vast 
amount  of  litigation  which  has  arisen  under  the 
constitutional  amendments  has  been  based  upon 
a  confused  notion  that  the  XIII,  XIV,  and  XV 
Amendments  in  some  way  altered  and  extended  the 
general  scope  of  Federal  powers,  even  to  the  point 
of  effecting  this  fundamental  change.  But  an  un- 
broken line  of  Federal  decisions  has  denied  that  such 
a  change  in  the  organic  structure  of  the  Federal 
government  was  either  contemplated  or  effected  by 
the  amendments,  and  points  out  that  the  legislation 
which  Congress  is  authorized  to  enact  under  the 
amendments  is  not  general  legislation  upon  the 
rights  of  citizens,  but  only  certain  corrective  legis- 
lation, if  such  be  necessary,  to  counteract  State  leg- 
islation prohibited  by  the  amendments  upon  special 
subjects  named  in  the  amendments. 

When  we  come  to  examine  the  multitudinous  de- 
cisions of  the  Supreme  Court  on  questions  which 
have  arisen  under  the  amendments  it  will  be  seen 

cases  not  falling  within  the  classes  already  mentioned,  it  seems 
unquestionable  that  the  States  retain  concurrent  authority  with 
Congress,  not  only  upon  the  letter  and  spirit  of  the  Eleventh  Amend- 
ment of  the  Constitution,  but  upon  the  soundest  principles  of  gen- 
eral reasoning.  There  is  this  reserve,  however,  that  in  cases  of 
concurrent  authority,  where  the  laws  of  the  States  and  of  the  Union 
are  in  direct  and  manifest  collision  on  the  same  subject,  those  of 
the  Union,  being  *  the  supreme  law  of  the  land/  are  of  paramount 
authority,  and  the  State  laws,  so  far,  and  so  far  only,  as  such 
incompatibility  exists,  must  necessarily  yield."  Houston  V.  Moore, 

(1820)    5   Wheat.    (U.   S.)    49.     See  also  M'Culloch   v.   Maryland, 

(1819)   4  Wheat.   (U.  S.)  405;  Cohen  v.  Virginia,  (1821)   6  Wheat. 

(U.  S.)  414;  Ableman  v.  Booth,  (1858)  21  How.  (U.  S.)  516; 
Legal  Tender  Cases,  (1870)  12  Wall.  (U.  S.)  545;  Tarble's  Case, 

(1871)  13  Wall.  (U.  S.)  406;  Ex  p.  Siebold,  (1879)  100  U.  S.  398; 
Chinese  Exclusion  Case,  (1889)  130  U.  S.  604;  In  re  Quarles, 

(1895)    158  U.  S.  535. 
8*  Civil  Rights  Cases,   (1883)    109  U.  S.  3. 


CITIZENSHIP  109 


that  the  cases  have  for  the  most  part  not  originated 
in  any  alleged  act  of  the  Federal  government  in- 
vading the  sphere  of  State  action,  but  upon  the 
contention  made  by  citizens  of  the  States  that  Fed- 
eral powers,  as  enlarged  by  the  amendments,  are 
much  more  far-reaching  and  restrictive  upon  State 
powers  than  the  Federal  courts  themselves  have 
been  willing  to  admit.  The  decisions  rendered  by 
the  Supreme  Court  have  in  an  overwhelming  ma- 
jority of  cases  been  against  the  broad  effect  of  the 
constitutional  amendments  as  authorizing  extended 
Federal  powers,  or  as  restricting  State  powers,  con- 
tended for  by  the  citizens;  and  they  declare  unani- 
mously the  continuing  power  of  the  States,  notwith- 
standing the  amendments,  to  regulate  exclusively  the 
rights,  privileges,  and  immunities  of  citizens  upon 
the  matters  in  issue,  subject  only  to  the  particular 
limitations  named  in  the  amendments.9 

9"  A  State  has  the  same  undeniable  and  unlimited  jurisdiction 
over  all  persons  and  things,  within  its  territorial  limits,  as  any 
foreign  nation,  where  that  jurisdiction  is  not  surrendered  or  re- 
strained by  the  Constitution  of  the  United  States.  By  virtue  of 
this,  it  is  not  only  the  right,  but  the  bounden  and  solemn  duty 
of  a  State,  to  advance  the  safety,  happiness,  and  prosperity  of  its 
people,  and  to  provide  for  its  general  welfare,  by  any  and  every 
act  of  legislation  which  it  may  deem  to  be  conducive  to  these  ends, 
where  the  power  over  the  particular  subject,  or  the  manner  of  its 
exercise,  is  not  surrendered  or  restrained  in  the  manner  just  stated. 
All  those  powers  which  relate  to  merely  municipal  legislation,  or 
what  may,  perhaps,  more  properly  be  called  '  internal  police/  are  not 
thus  surrendered  or  restrained;  and  consequently,  in  relation  to 
these,  the  authority  of  a  State  is  complete,  unqualified,  and  ex- 
clusive." New  York  v.  Miln,  (1837)  11  Pet.  (U.  S.)  139. 

"  Both  the  States  and  the  United  States  existed  before  the  Con- 
stitution. The  people,  through  that  instrument,  established  a  more 
perfect  union  by  substituting  a  national  government,  acting,  with 
ample  power,  directly  upon  the  citizens,  instead  of  the  confederate 
government,  which  acted,  with  powers  greatly  restricted,  only  upon 


HO  CITIZENSHIP 


Chapter  Seeing  now  that  the  rights,  privileges,  and  im- 
! munities  of  the  citizens  are  dependent,  for  acknowl- 
edgment and  protection,  upon  dual  governments, 
just  as  the  allegiance  of  the  citizen  is  due  to  dual 
governments,  let  us  next  consider  the  safeguards 
and  protections  of  those  rights  offered  to  the  citi- 
zen by  the  Federal  and  State  governments.  And,  as 
the  Federal  government,  although  limited  in  its 
sphere,  is  supreme,  and  as  all  other  rights,  not  de- 
rived from  or  guaranteed  by  it,  depend  for  their 
recognition  and  protection  upon  the  States,  the  or- 
derly method  of  consideration  would  seem  to  be,  to 
inquire  first  what  rights  of  the  citizen  the  Federal 
government  grants  or  undertakes  to  protect,  and 
what  it  has  neither  granted  nor  undertaken  to  guar- 
antee. For  all  rights  not  so  granted  or  guaranteed 
by  the  Federal  government  are  dependent  for  their 
existence  and  their  continuance  upon  the  State  of 
which  the  individual  is  a  citizen.1 

the  States.  But  in  many  articles  of  the  Constitution  the  necessary 
existence  of  the  States,  and,  within  their  proper  spheres,  the  inde- 
pendent authority  of  the  States,  is  distinctly  recognized.  To  them 
nearly  the  whole  charge  of  interior  regulation  is  committed  or  left; 
to  them  and  to  the  people  all  powers  not  expressly  delegated  to  the 
national  government  are  reserved.  The  general  condition  was  well 
stated  by  Mr.  Madison  in  The  Federalist,  thus :  *  The  Federal  and 
State  governments  are  in  fact  but  different  agents  and  trustees  of 
the  people,  constituted  with  different  powers  and  designated  for 
different  purposes.'"  Lane  County  v.  Oregon,  (1868)  7  Wall.  (U. 
S.)  76. 

i  Under  the  very  peculiar  constitution  of  this  government,  al- 
though the  citizens  owe  supreme  allegiance  to  the  Federal  govern- 
ment, they  owe  also  a  qualified  allegiance  to  the  State  in  which 
they  are  domiciled.  Their  persons  and  property  are  subject  to  its 
laws.  The  Brig  Amy  Warwick,  (1862)  2  Black  (U.  S.)  673. 


CITIZENSHIP 


Chapter 

Rights,  Privileges,  and  Immunities  Granted  or  Guar-       iv. 
anteed  to  the  Citizen  by  the  United  States. 

These  may  be  classified  as  follows :  classifi- 

cation of 

1.  Bights  granted  or  guaranteed  by  the  Consti-  rights- 
tution  of  the  United  States  as  originally  framed,  or 

by  the  first  twelve  amendments  thereto. 

2.  Eights  granted  or  guaranteed  by  the  XIII, 
XIV,  and  XV  Amendments. 

First,  then,  the  rights,  privileges,  or  immunities 
granted  or  guaranteed  to  the  citizen  by  the  Consti- 
tution of  the  United  States  as  originally  framed,  or 
by  the  first  twelve  amendments  thereto,  are,  in  the 
order  of  their  enumeration,  or  by  necessary  impli- 
cation, as  follows: 

1.  A  right.     That  citizens  of  the  States  com-  Eele£ion  of 
posing  the  Union,  having  the  qualifications  requisite 

for  electors  of  the  most  numerous  branch  of  the  f 
State  legislature,  shall  possess  the  right  and  privi- 
lege of  electors  for  members  of  the  House  of  Rep- 
resentatives of  the  United  States  chosen  every 
second  year  by  the  people  of  the  United  States. 
(Art.  I,  Sec.  2,  Cl.  I.)2 

2.  A  privilege.    That  such  citizens  shall  be  eli- 

gible  to  membership  of  the  House  of  Representatives,   sentatlves- 
if  they  possess  certain  qualifications  of  age,  length 

2 Ex  p.  Yarbrough,  (1884)  110  U.  S.  651;  In  re  Green,  (1890) 
134  U.  S.  377;  McPherson  v.  Blacker,  (1892)  146  U.  S.  1;  Wiley 
v.  Sinkler,  (1900)  179  U.  S.  58;  Swafford  v.  Templeton,  (1902)  185 
U.  S.  487. 

"The  right  to  vote  for  members  of  the  Congress  of  the  United 
States  is  not  derived  merely  from  the  constitution  and  laws  of  the 
State  in  which  they  are  chosen,  but  has  its  foundation  in  the  Con- 
stitution of  the  United  States."  Wiley  v.  Sinkler,  (1900)  179  U. 
S.  58,  avvrovinp  Ex  p.  Yarbrough,  (1884)  110  U.  S.  651. 


112 


CITIZENSHIP 


IV. 


Appor- 
tionment 
of  repre- 
sentation 
and  tax- 
ation. 


Census. 


Chapter    of  citizenship,  and  are  inhabitants  of  the  State  from 
which  they  are  chosen.     (Art.  I,  Sec.  2,  Cl.  2.) 

3.  A   right.     That   representatives   and   direct 
taxes  shall  be  apportioned,  among  the  several  States, 
according  to  their  respective  numbers,  which  shall 
be  determined  by  adding  to  the  whole  number  of 
free  persons,  including  those  bound  to  service  for 
a  term  of  years,  and  excluding  Indians  not  taxed, 
three-fifths   of  all  other  persons.     This  clause  is, 
however,  amended,  in  respect  to  apportionment  of 
representation,  by  the  XIV  Amendment,  Sec.  2.3 

4.  A  right.     To  have  an  enumeration  or  census, 
every  ten  years,  according  to  law,  to  determine  the 
basis  of  representation,  but  with  a  proviso  that  rep- 
resentatives shall  not  exceed  one  for  every  30,000, 

aDred  Scott  v.  Sandford,  (1856)  19  How.  (U.  S.)  393;  Veazie 
Bank  v.  Fenno,  (1869)  8  Wall.  (U.  S.)  533;  Scholey  v.  Hew,  (1874) 
'23  Wall.  (U.  S.)  331;  De  Treville  v.  Smalls,  (1878)  98  U.  S.  517; 
'•Gibbons  v.  District  of  Columbia,  (1886)  116  U.  S.  404;  Pollock  v. 
Farmers'  L.  &  T.  Co.,  (1895)  157  U.  S.  429;  Pollock  v.  Farmers' 
L.  &  T.  Co.,  158  U.  S.  601;  Thomas  v.  U.  S.,  (1904)  192  U.  S.  363. 
See  infra,  note  9,  p.  114. 

"The  men  who  framed  and  adopted  that  instrument  [the  Con- 
stitution] had  just  emerged  from  the  struggle  for  independence, 
whose  rallying  cry  had  been  that  'taxation  and  representation  go 
together.'  .  .  .  The  States  were  about,  for  all  national  purposes 
embraced  in  the  Constitution,  to  become  one,  united  under  the  same 
sovereign  authority,  and  governed  by  the  same  laws.  But  as  they 
still  retained  their  jurisdiction  over  all  persons  and  things  within 
their  territorial  limits,  except  where  surrendered  to  the  general 
government  or  restrained  by  the  Constitution,  they  were  careful  to 
see  to  it  that  taxation  and  representation  should  go  together,  so 
that  the  sovereignty  reserved  should  not  be  impaired,  and  that  when 
Congress,  and  especially  the  House  of  Representatives,  whers  it  was 
specifically  provided  that  all  revenue  bills  must  originate,  voted  a 
tax  upon  property,  it  should  be  with  the  consciousness,  and  under 
the  responsibility,  that  in  so  doing  the  tax  so  voted  would  propor- 
tionately fall  upon  the  immediate  constituents  of  those  who  imposed 
it."  Pollock  v.  Farmers'  L.  &  T.  Co.,  (1895)  157  U.  S.  429. 


CITIZENSHIP 


but  that  each  State  shall  have  at  least  one  represent-    chapter 
ative.     (Art.  I,  Sec.  2,  01.  3,  Par.  2.)4 


5.  A   privilege.     That   citizens   possessing  de- 
fined  qualifications  of  age,  length  of  residence,  and  ators> 
habitation,  shall  be  eligible  as  United  States  sena- 
tors.    (Art.  I,  Sec.  3,  01.  3.) 

6.  An  immunity.    Against  the  trial  of  impeach- 
ments  by  any  other  body  than  the  Senate,  or  con- 
viction without  a  concurrence  of  two-thirds  of  the 
members    present;   and   against    any  judgment   in 
such  case  extending  further  than  to  removal  from 
office  and  disqualification  to  hold  and  enjoy  any 
office  of  honor,  trust,  or  profit  under  the  United 
States.     (Art.  I,  Sec.  3,  01.  6.)5 

7.  An    immunity.    From    arrest,    except    for 


treason,  felony,  or  breach  of  the  peace,  while  attend-  congress. 
ing  Congress  as  a  member  or  going  to  or  returning 
from  the  same;  and  from  being  questioned  for  any 
speech  or  debate  in  either  House.     (Art.  I,  Sec.  6, 
01.  I.)6 

8.    A  right.     That  all  bills  for  raising  revenue  biifsenue 
shall   originate  in  the  House  of  Representatives. 
(Art.  I,  Sec.  7,  01.  1.)7 

*  "  The  direct  and  declared  object  of  this  census  is,  to  furnish  a 
standard  by  which  '  representatives,  and  direct  taxes,  may  be  appor- 
tioned among  the  several  States  which  may  be  included  within  this 
Union."'     Loughborough  v.  Blake,   (1820)   5  Wheat.   (U.  S.)   317. 

5  "  The  House  of  Representatives  has  the  sole  right  to  impeach 
officers  of  the  government,  and  the  Senate  to  try  them."  Kilbourn 
V.  Thompson,  (1880)  103  U.  S.  190. 

e  Anderson  v.  Dunn,  (1821)  6  Wheat.  (U.  S.)  204;  Coxe  v. 
M'Clenachan,  (1798)  3  Dall.  (U.  S.)  478;  Kilbourn  v.  Thompson, 
(1880)  103  U.  S.  168. 

•  Field  v.  Clark,   (1892)   143  U.  S.  649;  Twin  City  Bank  v.  Nebe- 
ker,   (1897)    16V  U    S.  196. 

"  The  construction  ol  this  limitation  is  practically  well  settled 
8 


CITIZENSHIP 


Chapter  9.  A  right.  To  have  the  executive  sanction  of 
all  laws  before  they  become  effective,  unless  they  be 
passed  over  the  President's  veto.  (Art.  I,  Sec.  7, 
CL  2.)8 

10.    A  right.     That  all  duties,  imposts,  and  ex- 
etc.  ciseg  impose(i  by  Congress  shall  be  uniform  through- 
out the  United  States.     (Art.  I,  Sec.  8,  01.  I.)9 

by  the  uniform  action  of  Congress.  According  to  that  construction, 
it  *  has  been  confined  to  bills  to  levy  taxes  in  the  strict  sense  of  the 
words,  and  has  not  been  understood  to  extend  to  bills  for  other  pur- 
poses which  incidentally  create  revenue.'"  U.  S.  v.  Norton,  (1875) 
1  U.  S.  569;  Twin  City  Bank  v.  Nebeker,  (1897)  167  U.  S.  202. 

s  Field  v.  Clark,  (1892)  143  U.  S.  649;  U.  S.  V.  Ballin,  (1892) 
144  U.  S.  1;  Twin  City  Bank  v.  Nebeker,  (1897)  167  U.  S.  196; 
La  Abra  Silver  Min.  Co.  v.  U.  S.,  (1899)  175  U.  S.  423;  Wilkes 
County  v.  Coler,  (1901)  180  U.  S.  506;  Fourteen  Diamond  Rings  v. 
U.  S.,  (1901)  183  U.  S.  176. 

"  The  purpose  of  the  Constitution  is  to  secure  to  the  people  of 
this  country  the  best  legislation  by  the  simplest  means.  Its  framers 
being  mindful  of  the  errors  and  oversights  which  are  bred  in  the 
heat  and  strife  and  divided  responsibility  of  legislative  assemblies, 
and  which  they  had  repeatedly  beheld  in  State  legislatures,  deter- 
mined to  secure  to  the  people  the  benefits  of  revision,  and  to  unite 
with  the  power  of  revision  the  check  of  undivided  responsibility,  and 
to  place  the  power  in  the  hands  of  the  person  in  whom  the  nation 
reposed,  for  the  time  being,  the  most  confidence."  U.  S.  v.  Weil, 
(1894)  29  Ct.  01.  540. 

»Hylton  v.  U.  S.,  (1796)  3  Ball.  (U.  S.)  171;  M'Culloch  v. 
Maryland,  (1819)  4  Wheat.  (U.  S.)  316;  Loughborough  v.  Blake, 
(1820)  5  Wheat.  (U.  S.)  317;  Osborn  v.  U.  S.  Bank,  (1824)  9 
Wheat.  (U.  S.)  738;  Weston  V.  Charleston,  (1829)  2  Pet.  (U.  S.) 
449;  Dobbins  v.  Erie  County,  (1842)  16  Pet.  (U.  S.)  435;  Thurlow 
V.  Massachusetts,  (1847)  5  How.  (U.  S.)  504;  Cooley  v.  Board  of 
Wardens,  (1851)  12  How.  (U.  S.)  299;  McGuire  v.  Massachusetts, 
(1865)  3  Wall.  (U.  S.)  387;  Van  Allen  v.  Assessors,  (1865)  3 
Wall.  (U.  S.)  573;  Bradley  v.  People,  (1866)  4  Wall.  (U.  S.)  459; 
License  Tax  Cases,  (1866)  5  Wall.  (U.  S.)  462;  Pervear  v.  Massa- 
chusetts, (1866)  5  Wall.  (U.  S.)  475;  Woodruff  v.  Parham,  (1868) 
8  Wall.  (U.  S.)  123;  Hinson  V.  Lott,  (1868)  8  Wall.  (U.  S.)  148; 
Veazie  Bank  v.  Fenno,  (1869)  8  Wall.  (U.  S.)  533;  Collector  v. 
Day,  (1870)  11  Wall.  (U.  S.)  113;  U.  S.  v.  Singer,  (1872)  15  Wall. 
(U.  S.)  Ill;  State  Tax  on  Foreign-held  Bonds,  (1872)  15 
Wall.  (U.  S.)  300;  U.  S.  v.  Baltimore,  etc.,  R.  Co.,  (1872)  17  Wall. 


CITIZENSHIP  -Q5 


11.    An  immunity.    From  any  laws  passed  by    Chapter 
any  State,  or  other  authority  than  Congress,  regulat-       IV> 
ing  commerce  with  foreign  nations  and  among:  the  Int?r- 

0  national 

several  States,  and  with  the  Indian  tribes.     (Art.  I,  J£}e  i 
Sec.  8,01.  3.)1 

(U.  S.)  322;  Union  Pac.  R.  Co.  v.  Peniston,  (1873)  18  Wall.  (U. 
S.)  5;  Scholey  v.  Hew,  (1874)  23  Wall.  (U.  S.)  331;  Merchants' 
Nat.  Bank  v.  U.  S.,  (1879)  101  U.  S.  1;  Springer  v.  U.  S.,  (1881) 
102  U.  S.  586;  Legal  Tender  Case,  (1884)  110  U.  S.  421;  Head 
Money  Cases,  (1884)  112  U.  S.  580;  Van  Brocklin  V.  Tennessee, 
(1886)  117  U.  S.  151;  Field  v.  Clark,  (1892)  143  U.  S.  649,  New 
York,  etc.,  R.  Co.  v.  Pennsylvania,  (1894)  153  U.  S.  628;  Pollock  v. 
Farmers'  L.  &  T.  Co.,  (1895)  157  U.  S.  429;  U.  S.  V.  Realty  Co., 
(1896)  163  U.  S.  427;  In  re  Kollock,  (1897)  165  U.  S.  526;  Nicol 
v.  Ames,  (1899)  173  U.  S.  509;  Knowlton  v.  Moore,  (1900)  178 
U.  S.  41;  De  Lima  v.  Bidwell,  (1901)  182  U.  S.  1;  Dooley  V.  U.  S., 
(1901)  182  U.  S.  222;  Fourteen  Diamond  Rings  v.  U.  S.,  (1901) 
183  U.  S.  176;  Felsenheld  v.  U.  S.,  (1902)  186  U.  S.  126;  Thomas 
v.  U.  S.,  (1904)  192  U.  S.  363.  See  supra,  note  3,  p.  112. 

i  Gibbons  v.  Ogden,  (1824)  9  Wheat.  (U.  S.)  1;  Brown  v.  Mary- 
land, (1827)  12  Wheat.  (U.  S.)  419;  Willson  v.  Black  Bird  Creek 
Marsh  Co.,  (1829)  2  Pet.  (U.  S.)  245;  Worcester  v.  Georgia, 
(1832)  6  Pet.  (U.  S.)  515;  New  York  v.  Miln,  (1837)  11  Pet.  (U. 
S.)  102;  U.  S.  v.  Coombs,  (1838)  12  Pet.  (U.  S.)  72;  Holmes  v.  Jen- 
nison,  (1840)  14  Pet.  (U.S.)  540;  Thurlow  v.  Massachusetts,  (1847) 
5  How.  (U.  S.)  504;  Smith  v.  Turner,  (1849)  7  How.  (U.  S.)  283; 
Nathan  V.  Louisiana,  (1850)  8  How.  (U.  S.)  73;  Mager  v.  Grima, 
(1850)  8  How.  (U.  S.)  490;  U.  S.  V.  Marigold,  (1850)  9  How.  (U. 
S.)  560;  Cooley  v.  Board  of  Wardens,  (1851)  12  How.  (U.  S.)  299; 
The  Propeller  Genesee  Chief  v.  Fitzhugh,  (1851)  12  How.  (U.  S.) 
443;  Pennsylvania  v.  Wheeling,  etc.,  Bridge  Co.,  (1851)  13  How.  (U. 
S.)  518;  Veazie  V.  Moor,  (1852)  14  How.  (U.  S.)  568;  Smith  v. 
Maryland,  (1855)  18  How.  (U.  S.)  71;  Pennsylvania  v.  Wheeling, 
etc.,  Bridge  Co.,  (1855)  18  How.  (U.  S.)  421;  Sinnot  v.  Davenport, 
(1859)  22  How.  (U.  S.)  227;  Foster  v.  Davenport,  (1859)  22  How. 
(U.  S.)  244;  Conway  V.  Taylor,  (1861)  1  Black  (U.  S.)  603;  U.  S. 
v.  Holliday,  (1865)  3  Wall.  (U.  S.)  407;  Gilman  v.  Philadelphia, 
(1865)  3  Wall.  (U.  S.)  713;  The  Passaic  Bridges,  3  Wall.  (U.  S.) 
782;  Southern  Steamship  Co.  v.  Port  Wardens,  (1867)  6  Wall. 
(U.  S.)  31;  Crandall  v.  Nevada,  (1867)  6  Wall.  (U.  S.)  35; 
White's  Bank  v.  Smith,  (1868)  7  Wall.  (U.  S.)  646;  Waring  v. 
Mobile,  (1868)  8  Wall.  (U.  S.)  110;  Paul  v.  Virginia,  (1868)  8 
Wall.  (U.  S.)  168;  Thomson  v.  Pacific  R.  Co.,  (1869)  9  Wall.  (U. 


CITIZENSHIP 


S.)  579;  Downham  v.  Alexandria,  (1869)  10  Wall.  (U.  S.)  173; 
Clinton  Bridge,  (1870)  10  Wall.  (U.  S.)  454;  The  Daniel  Ball, 
(1870)  10  Wall.  (U.  S.)  557;  Liverpool  Ins.  Co.  v.  Massachusetts, 
(1870)  10  Wall.  (U.  S.)  566;  The  Montello,  (1870)  11  Wall.  (U. 
S.)  411;  Ex  p.  McNiel,  (1871)  13  Wall.  (U.  S.)  236;  State  Freight 
Tax  Case,  (1872)  15  Wall.  (U.  S.)  232;  State  Tax  on  Railway 
Gross  Receipts,  (1872)  15  Wall.  (U.  S.)  284;  Osborne  v.  Mobile, 
(1872)  16  Wall.  (U.  S.)  479;  Chicago,  etc.,  R.  Co.  v.  Fuller,  (1873) 
17  Wall.  (U.  S.)  560;  Bartemeyer  v.  Iowa,  (1873)  18  Wall.  (U.  S.) 
129;  Delaware  Railroad  Tax,  (1873)  18  Wall.  (U.  S.)  206;  Peete 
v.  Morgan,  (1873)  19  Wall.  (U.  S.)  581;  Dubuque,  etc.,  R.  Co.  v. 
Richmond,  (1873)  19  Wall.  (U.  S.)  584;  Baltimore,  etc.,  R.  Co.  v. 
Maryland,  (1874)  21  Wall.  (U.  S.)  456;  The  Lottawanna,  (1874) 
21  Wall.  (U.  S.)  558;  Welton  v.  Missouri,  (1875)  91  U.  S.  275; 
Henderson  v.  New  York,  (1875)  92  U.  S.  259;  Chy  Lung  v.  Free- 
man, (1875)  92  U.  S.  275;  South  Carolina  v.  Georgia,  (1876) 
93  U.  S.  4;  Sherlock  v.  Ailing,  (1876)  93  U.  S.  99;  U.  S.  V.  43 
Gallons  Whisky,  (1876)  93  U.  S.  188;  Foster  v.  New  Orleans, 
(1876)  94  U.  S.  246;  McCready  v.  Virginia,  (1876)  94  U.  S.  391; 
Hannibal,  etc.,  R.  Co.  v.  Husen,  (1877)  95  U.  S.  465;  Pound  v. 
Turck,  (1877)  95  U.  S.  459;  Hall  v.  De  Cuir,  (1877)  95  U.  S.  485; 
Pensacola  Tel.  Co.  v.  Western  Union  Tel.  Co.,  (1877)  96  U.  S.  1; 
Boston  Beer  Co.  v.  Massachusetts,  (1877)  97  U.  S.  25;  Cook  v. 
Pennsylvania,  (1878)  97  U.  S.  566;  Wheeling,  etc.,  Transp.  Co.  V. 
Wheeling,  (1878)  99  U.  S.  273;  Northwestern  Union  Packet  Co. 
v.  St.  Louis,  (1879)  100  U.  S.  423;  Guy  v.  Baltimore,  (1879) 
100  U.  S.  434;  Kirtland  v.  Hotchkiss,  (1879)  100  U.  S.  491; 
Howe  Mach.  Co.  v.  Gage,  (1879)  100  U.  S.  676;  Trade-mark 
Cases,  (1879)  100  U.  S.  82;  Wilson  v.  McNamee,  (1881)  102 
U.  S.  572;  Tiernan  v.  Rinker,  (1880)  102  U.  S.  123;  Lord  v.  Good- 
all,  etc.,  Steamship  Co.,  (1881)  102  U.  S.  541;  Mobile  County  v. 
Kimball,  (1881)  102  U.  S.  691;  Western  Union  Tel.  Co.  V.  Texas, 
(1881)  105  U.  S.  460;  Newport,  etc.,  Bridge  Co.  v.  U.  S.,  (1881) 
105  U.  S.  470;  Wiggins  Ferry  Co.  v.  East  St.  Louis,  (1882)  107 
U.  S.  365;  Turner  v.  Maryland,  (1882)  107  U.  S.  38;  Escanaba, 
etc.,  Transp.  Co.  v.  Chicago,  (1882)  107  U.  S.  678;  Miller  v.  New 
York,  (1883)  109  U.  S.  385;  Moran  v.  New  Orleans,  (1884)  112 
U.  S.  69;  Foster  v.  Kansas,  (1884)  112  U.  S.  201;  Head  Money 
Cases,  (1884)  112  U.  S.  580;  Cardwell  v.  American  Bridge  Co., 

(1885)  113  U.   S.  205;   Cooper  Mfg.   Co.  v.   Ferguson,    (1885)    113 
U.  S.  727;  Gloucester  Ferry  Co.  v.  Pennsylvania,    (1885)    114  U.  S. 
196;   Brown  v.  Houston,    (1885)    114  U.  S.  622;  Railroad  Commis- 
sion Cases,    (1886)    116  U.  S.  307,  347,  352;   Walling  v.  Michigan, 

(1886)  116  U.  S.  446;  Coe  v.  Errol,   (1886)   116  U.  S.  517;  Pickard 
v.  Pullman  Southern  Car   Co.,    (1886)    117   U.   S.   34;   Tennessee  v. 
Pullman  Southern  Car  Co.,   (1886)    117  U.  S.  51;  Morgan's  Steam- 


CITIZENSHIP 


ship    Co.   v.   Louisiana   Board  of  Health,    (1886)    118   U.    S.   455;      Chapter 
Wabash,  etc.,  R.   Co.   f.   Illinois,    (1886)    118  U.   S.   557;    U.   S.   V.          IV. 

Kagama,    (1886)    118  U.  S.  375;   Philadelphia  Fire  Assoc.  v.  New   

York,    (1886)    119    U.   S.    110;    Johnson   v.    Chicago,    etc.,   Elevator 
Co.,   (1886)    119  U.  S.  388;  Robbins  v.  Shelby  County  Taxing  Dist., 

(1887)  120  U.  S.  489;  Corson  v.  Maryland,    (1887)    120  U.  S.  502; 
Fargo    v.    Michigan,     (1887)     121    U.    S.    230;    Philadelphia,    etc., 
Steamship   Co.,   v.   Pennsylvania,    (1887)     122   U.    S.    326;    Western 
Union  Tel.  Co.  v.  Pendleton,   (1887)    122  U.  S.  347;  Sands  v.  Man- 
istee  River  Imp.   Co.,    (1887)    123  U.   S.   288;    Smith  v.  Alabama, 

(1888)  124  U.  S.  465;  Willamette  Iron  Bridge  Co.  v.  Hatch,  (1888) 
125  U.  S.  1;  Pembina  Consol.  Silver  Min.,  etc.,  Co.  v.  Pennsylvania, 
(1888)    125  U.  S.  181;  Bowman  v.  Chicago,  etc.,  R.  Co.   (1888)    125 
U.  S.  465;  Western  Union  Tel.  Co.  v.  Atty.-Gen.,   (1888)    125  U.  S. 
530;  California  v.  Central  Pac.  R.  Co.,   (1888)    127  U.  S.  1;  Ratter- 
man  v.  Western  Union  Tel.  Co.,    (1888)    127  U.  S.  411;  Leloup  v. 
Mobile,    (1888)    127  U.  S.  640;  Kidd  v.  Pearson,    (1888)    128  U.  S. 
1;  Asher  V.  Texas,    (1888)    128  U.  S.  129;  Nashville,  etc.,  R.  Co.  v. 
Alabama,    (1888)    128  U.  S.  96;   Stoutenburgh  v.  Hennick,    (1889) 
129  U.   S.   141;   Kimmish  v.  Ball,    (1889)    129  U.  S.  217;   Western 
Union  Tel.  Co.  v.  Alabama  State  Board  of  Assessment,    (1889)    132 
U.  S.  472;  Fritts  v.  Palmer,   (1889)   132  U.  S.  282;  Louisville,  etc., 
R.  Co.  v.  Mississippi,  (1890)  133  U.  S.  587;  Leisy  v.  Hardin,  (1890) 
135  U.  S.  100;  Cherokee  Nation  v.  Southern  Kansas  R.  Co.,   (1890) 
135  U.  S.  641;  McCall  v.  California,    (1890)    136  U.  S.   104;  Nor- 
folk, etc.,  R.  Co.  v.  Pennsylvania,   (1890)    136  U.  S.  114;  Minnesota 
v.  Barber,    (1890)    136  U.  S.  318;   Texas,  etc.,  R.  Co.  v.  Southern 
Pac.  Co.,    (1890)    137  U.  S.  48;   Brimmer  v.  Rebman,    (1891)    138 
U.    S.    78;    Manchester   v.   Massachusetts,     (1891)     139    U.    S.    240; 
In  re  Rahrer,    (1891)    140  U.  S.  545;   Pullman's  Palace  Car  Co.  v. 
Pennsylvania,     (1891)     141    U.    S.    18;    Massachusetts    v.    Western 
Union  Tel.  Co.,   (1891)    141  U.  S.  40;  Crutcher  v.  Kentucky,   (1891) 
141  U.  S.  47;  Voight  v.  Wright,    (1891)    141  U.  S.  62;  Henderson 
Bridge   Co.   v.   Henderson,    (1891)    141   U.    S.   679;    In   re   Garnett, 
(1891)    141   U.   S.    1;   Maine  v.   Grand  Trunk  R.   Co.,    (1891)    142 
U.  S.  217;  Nishimura  Ekiu  v.  U.  S.,   (1892)    142  U.  S.  651;  Pacific 
Express  Co.  v.  Seibert,   (1892)    142  U.  S.  339;  Horn  Silver  Min.  Co. 
V.  New  York,    (1892)    143  U.   S.  305;    Field  v.  Clark,    (1892)    143 
U.  S.  649;   O'Neil  V.  Vermont,    (1892)    144   U.  S.   323;    Ficklen  v. 
Shelby  County  Taxing  Dist.,    (1892)    145  U.   S.    1;    Lehigh  Valley 
R.  Co.  v.  Pennsylvania,   (1892)    145  U.  S.  192;  Harman  v.  Chicago, 
(1893)    147  U.  S.  396;  Monongahela  Nav.  Co.  V.  U.  S.,   (1893)    148 
U.  S.  312;   Brennan  V.  Titusville,    (1894)    153  U.  S.  289;   Brass  v. 
North  Dakota,    (1894)    153  U.  S.  391;  Ashley  v.  Ryan,    (1894)    153 
U.  S.  436;  Luxton  v.  North  River  Bridge  Co.,  (1894)  153  U.  S.  525; 
Postal  Tel.-Cable  Co.  v.   Charleston,    (1894)    153   U.   S.   692;   Cov- 


118  CITIZENSHIP 


Chapter  ington,  etc.,  Bridge  Co.  v.  Kentucky,  (1894)  154  U.  S.  204;  Inter- 
IV.  state  Commerce  Commission  v.  Brimson,  (1894)  154  U.  S.  447; 

Plumley  v.  Massachusetts,  (1894)  155  U.  S.  461;  Texas,  etc.,  R. 

Co.  v.  Interstate  Transp.  Co.,  (1895)  155  U.  S.  585;  Hooper  V. 
California,  (1895)  155  U.  S.  648;  Postal  Tel.-Cable  Co.  v.  Adams, 
(1895)  155  U.  S.  688;  U.  S.  V.  E.  C.  Knight  Co.,  (1895)  156  U.  S. 
1;  Emert  v.  Missouri,  (1895)  156  U.  S.  296;  Pittsburg,  etc.,  Coal 
Co.  v.  Bates,  (1895)  156  U.  S.  577;  Pittsburg,  etc.,  Coal  Co.  v. 
Louisiana,  (1895)  156  U.  S.  590;  Gulf,  etc.,  R.  Co.  v.  Hefley, 

(1895)  158  U.  S.  98;  New  York,  etc.,  R.  Co.  v.  Pennsylvania,  (1895) 
158  U.  S.  431;  In  re  Debs,    (1895)    158  U.  S.  564;   Greer  v.  Con- 
necticut,   (1896)    161  U.  S.  519;   Western  Union  Tel.  Co.  tf.  James, 

(1896)  162  U.  S.  650;  Western  Union  Tel.  Co.  v.  Taggart,    (1896) 
163  U.  S.  1;  Illinois  Cent.  R.  Co.  v.  Illinois,  (1896)   163  U.  S.  142; 
Hennington  v.  Georgia,    (1896)    163  U.  S.  299;   Osborne  v.  Florida, 

(1897)  164   U.    S.    650;    Scott  V.   Donald,    (1897)    165   U.    S.    58; 
Adams  Express  Co.  v.  Ohio  State  Auditor,    (1897)    165  U.  S.  194; 
Lake  Shore,  etc.,  R.  Co.  v.  Ohio,  (1897)    165  U.  S.  365;  New  York, 
etc.,  R.  Co.  v.  New  York,  (1897)    165  U.  S.  628;  Gladson  v.  Minne- 
sota,   (1897)    166  U.   S.   427;   Henderson   Bridge  Co.   v.   Kentucky, 

(1897)  166   U.    S.    150;    St.   Anthony    Falls   Water   Power   Co.    v. 
St.  Paul  Water  Com'rs,    (1897)    168  U.   S.  349;    Chicago,  etc.,  R. 
Co.  v.  Solan,   (1898)   169  U.  S.  133;  Missouri,  etc.,  R.  Co.  v.  Haber, 

(1898)  169  U.  S.  613;   Richmond,  etc.,  R.   Co.  v.  R.  A.  Patterson 
Tobacco  Co.,    (1898)    169  U.  S.  311;   Rhodes  v.  Iowa,    (1898)    170 
U.  S.  412;  Vance  v.  W.  A.  Vandercook  Co.,   (1898)    170  U.  S.  438; 
Schollenberger   v.    Pennsylvania,    (1898)     171    U.    S.    1;    Collins   v. 
New  Hampshire,   (1898)   171  U.  S.  30;  Patapsco  Guano  Co.  v.  North 
Carolina  Board  of  Agriculture,    (1898)    171  U.  S.  345;  New  York 
v.  Roberts,    (1898)    171   U.   S.  658;    Hopkins  v.  U.   S.,    (1898)    171 
U.  S.  578;   Anderson  v.  U.  S.,    (1898)    171  U.   S.  604;   Green  Bay, 
etc.,  Canal   Co.  v.   Patten   Paper  Co.,    (1898)    172   U.   S.   58;    Lake 
Shore,  etc.,  R.  Co.  V.  Ohio,   (1899)    173  U.  S.  285;  Henderson  Bridge 
Co.  v.  Henderson,    (1899)    173  U.  S.  592;   Missouri,  etc.,  R.  Co.  v. 
McCann,    (1899)    174  U.  S.  580;   Addyston  Pipe,  etc.,  Co.  v.  U.  S., 

(1899)  175  U.  S.   211;    Louisiana  v.  Texas,    (1900)    176  U.   S.   1; 
U.  S.  v.  Bellingham  Bay  Boom  Co.,    (1900)    176  U.   S.  211;   Lind- 
say, etc.,  Co.  v.  Mullen,    (1900)    176  U.   S.   126;   Waters-Pierce  Oil 
Co.   v.    Texas,    (1900)     177    U.    S.    28;    New    York   L.    Ins.    Co.    V. 
Cravens,    (1900)    178  U.   S.  389;   Scranton  v.  Wheeler,    (1900)    179 
U.  S.   141;   Williams  v.  Fears,    (1900)    179  U.   S.  270;    Wisconsin, 
etc.,  R.   Co.  v.  Jacobson,    (1900)    179   U.   S.   287;    Chesapeake,  etc., 
R.  Co.  i?.  Kentucky,    (1900)    179  U.  S.  388;  Reymann  Brewing  Co. 
v.  Brister,    (1900)    179  U.  S.  445;  W.  W.  Cargill  Co.  v.  Minnesota, 

I,  .  (1901)    180  U.  S.  452;  Rasmussen  v.  Idaho,   (1901)    181  U.  S.  198; 

Smith  v.  St.  Louis,  etc.,  R.   Co.,    (1901)    181   U.   S.   248;    Capital 


CITIZENSHIP 


12.    A  right.    To  uniform  Federal  laws  of  nat-    chapter 
uralization  and  bankruptcy  throughout  the  United 
States.     (Art.  I,  Sec.  8,  Cl.  4.)2 

City  Dairy  Co.  v.  Ohio,  (1902)  183  U.  S.  238;  Louisville,  etc., 
R.  Co.  v.  Kentucky,  (1902)  183  U.  S.  503;  Nutting  v.  Massachu- 
setts, (1902)  183  U.  S.  553;  McChord  v.  Louisville,  etc.,  R.  Co., 

(1902)  183  U.   S.  483;   Louisville,  etc.,  R.  Co.  v.  Eubank,    (1902) 
184  U.  S.  27;   Stockard  v.  Morgan,    (1902)    185  U.   S.  27;   Minne- 
apolis, etc.,  R.   Co.  v.  Minnesota,    (1902)    186  U.  S.  257;   Reid  V. 
Colorado,    (1902)    187  U.  S.   137;  Western  Union  Tel.  Co.  v.  New 
Hope,   (1903)    187  U.  S.  419;  Diamond  Glue  Co.  v.  U.  S.  Glue  Co., 

(1903)  187    U.   S.   611;    Louisville,   etc.,   Ferry   Co.   v.   Kentucky, 

(1903)  188   U.    S.    385;    U.   S.   v.   Lynah,    (1903)    188   U.   S.   445; 
Cummings  v.  Chicago,   (1903)    188  U.  S.  410;  The  Roanoke,    (1903) 
189   U.    S.    185;    Montgomery   v.   Portland,    (1903)    190   U.    S.    89; 
Patterson  v.  Bark  Eudora,    (1903)    190  U.   S.   169;   Allen  v.   Pull- 
man's Palace  Car  Co.,   (1903)    191  U.  S.  171;  New  York  v.  Knight, 

(1904)  192  U.  S.  21;   Postal  Tel.-Cable  Co.  v.  Taylor,    (1904)    192 
U.   S.  64;    Grossman  v.  Lurman,    (1904)    192  U.   S.   189;    St.   Clair 
County  v.  Interstate  Sand,  etc.,  Co.,    (1904)    192  U.  S.  454;   Butt- 
field   v.    Stranahan,    (1904)    192   U.   S.  470;    American   Steel,  etc., 
Co.   v?  Speed,    (1904)    192   U.   S.   500;    Northern  Securities  Co.   v. 
U.  S.,   (1904)    193  U.  S.  197. 

2Sturges  v.  Crowninshield,  (1819)  4  Wheat.  (U.  S.)  122; 
M'Millan  v.  M'Neill,  (1819)  4  Wheat.  (U.  S.)  209;  Farmers*  etc., 
Bank  v.  Smith,  (1821)  6  Wheat.  (U.  S.)  131;  Ogden  V.  Saunders, 
(1827)  12  Wheat.  (U.  S.)  213;  Boyle  v.  Zacharie,  (1832)  6  Pet. 
(U.  S.)  348;  Gassies  V.  Ballon,  (1832)  6  Pet.  (U.  S.)  761;  Beers 
•17.  Haughton,  (1835)  9  Pet.  (U.  S.)'  329;  Suydam  v.  Broadnax, 
(1840)  14  Pet.  (U.  S.)  67;'  Cook  tf.  Moffat,  (1847)  5  How.  (U.  S.) 
295;  Dred  Scott  v.  Sandford,  (1856)  19  How.  (U.  S.)  393;  Nishi- 
mura  Ekiu  v.  U.  S.,  (1892)  142  U.  S.  651;  Hanover  Nat.  Bank  v. 
Moyses,  (1902)  186  U.  S.  181. 

The  power  of  Congress  to  pass  bankrupt  laws  is  not  exclusive, 
but  that  power  may  be  exercised  by  the  States  except  when  it  is  actu- 
ally exercised  by  Congress  and  the  State  laws  conflict  with  the 
Federal  law.  It  is  not  the  mere  existence  of  the  power  to  enact 
such  laws,  but  its*  exercise  by  Congress,  which  is  incompatible  with 
the  exercise  of  the  same  power  by  the  State.  Otherwise  with  the 
power  to  pass  uniform  Federal  laws  of  naturalization.  "The  citi- 
zens of  any  one  State  being  entitled  by  the  Constitution  to  enjoy 
the  rights  of  citizenship  in  every  other  State,  that  fact  creates  an 
interest  in  this  particular  in  each  other's  acts,  which  does  not 
•exist  with  regard  to  their  bankrupt  laws;  since  State  acts  of  natu- 


120 


CITIZENSHIP 


Chapter 
IV. 


Coinage, 
weights 
and    meas- 
ures, 
postal 
system. 


13.  A  right.     To  a  Federal  coinage  and  stand- 
ard  of   weights   and   measures.     (Art.    I,    Sec.   8, 
01.  5.)3 

14.  A  right.    To  an  established  Federal  postal 
system  and  post  roads.     (Art.  I,  Sec.  8,  01.  6.)4 


ralization  would  thus  be  extra-territorial  in  their  operation,  and 
have  an  influence  on  the  most  vital  interests  of  other  States.  On 
these  grounds,  State  laws  of  naturalization  may  be  brought  under 
one  of  the  four  heads  or  classes  of  powers  precluded  to  the  States, 
to  wit,  that  of  incompatibility."  Ogden  v.  Saunders,  (1827)  12 
Wheat.  (U.  S.)  277.  See  also  Peirce  v.  New  Hampshire,  (1847) 
5  How.  (U.  S.)  585;  Dred  Scott  V.  Sandford,  (1856)  19  How. 
(U.  S.)  405;  Gilman  v.  Lockwood,  (1866)  4  Wall.  (U.  S.)  410; 
Brown  v.  Smart,  (1892)  145  U.  S.  457. 

sBriscoe  v.  Kentucky  Com.  Bank,  (1837)  11  Pet.  (U.  S.)  267; 
Fox  v.  Ohio,  (1847)  5  How.  (U.  S.)  410;  U.  S.  v.  Marigold, 
(1850)  9  How.  (U.  S.)  560;  Legal  Tender  Cases,  (1870)  12  Wall. 
(U.  S.)  545;  The  Miantinomi,  (1855)  3  Wall.  Jr.  (C.  C.)  46,  17 
Fed.  Cas.  No.  9,521. 

"  The  Constitution  was  intended  to  frame  a  government  as 
distinguished  from  a  league  or  compact,  a  government  supreme  in 
some  particulars  over  States  and  people.  It  was  designed  to  pro- 
vide the  same  currency,  having  a  uniform  legal  value  in  all  the 
States.  It  was  for  this  reason  the  power  to  coin  money  and  regu- 
late its  value  was  conferred  upon  the  Federal  government,  while 
the  same  power  as  well  as  the  power  to  emit  bills  of  credit  was 
withdrawn  from  the  States.  The  States  can  no  longer  declare  what 
shall  be  money,  or  regulate  its  value.  Whatever  power  there  is 
over  the  currency  is  vested  in  Congress."  Legal  Tender  Cases,  (1870) 
12  Wall.  (U.  S.)  545. 

*  Pennsylvania  v.  Wheeling,  etc.,  Bridge  Co.,  (1855)  18  How. 
(U.  S.)  421;  Pensacola  Tel.  Co.  v.  Western  Union  Tel.  Co.,  (1877) 
96  U.  S.  1;  Ex  p.  Jackson,  (1877)  96  U.  S.  727;  In  re  Rapier, 
(1892)  143  U.  S.  110;  Homer  v.  U.  S.,  (1892)  143  U.  S.  207; 
In  re  Debs,  (1895)  158  U.  S.  564;  Illinois  Cent.  R.  R.  Co.  v.  Illinois, 
(1896)  163  U.  S.  142;  Gladson  v.  Minnesota,  (1897)  166  U.  S.  427. 

"  Post-offices  and  post-roads  are  established  to  facilitate  the 
transmission  of  intelligence.  Both  commerce  and  the  postal  service 
are  placed  within  the  power  of  Congress,  because,  being  national 
in  their  operation,  they  should  be  under  the  protecting  care  of  the 
national  government.  ...  As  they  were  intrusted  to  the  gen- 
eral government  for  the  good  of  the  nation,  it  is  not  only  the  right, 


CITIZENSHIP 


15.    A  right.    To  a  Federal  system  of  patent-    chapter 
rights  and  copyrights.     (Art.  I,  Sec.  8,  01.  8.)5  IV' 


16.  A  right.    To  a  supreme  court  and  a  system  Patents 

and      copy- 

of  federal  courts  inferior  to  the   supreme   court.  riRhts- 
(Art.  Ill,  Sees.  1  and  2 ;  Art.  I,  Sec.  8,  01.  9.)6  ^X!1 

17.  A   right.     To   Federal   protection    against  offenses 

against   the 

piracies  and  felonies  committed  on  the  high  seas  and  naaYio°sf. 

but  the  duty,  of  Congress  to  see  to  it  that  intercourse  among  the 
States  and  the  transmission  of  intelligence  are  not  obstructed  or 
unnecessarily  encumbered  by  State  legislation."  Pensacola  Tel.  Co. 
v.  Western  Union  Tel.  Co.,  (1877)  96  U.  S.  1. 

"The  States  before  the  Union  was  formed  could  establish  post- 
offices  and  post-roads,  and  in  doing  so  could  bring  into  play  the 
police  power  in  the  protection  of  their  citizens  from  the  use  of  the 
means  so  provided  for  purposes  supposed  to  exert  a  demoralizing 
influence  upon  the  people.  When  the  power  to  establish  post-offices 
and  post-roads  was  surrendered  to  the  Congress  it  was  as  a  com- 
plete power,  and  the  grant  carried  with  it  the  right  to  exercise  all 
the  powers  which  made  that  power  effective."  In  re  Rapier,  (1892) 
143  U.  S.  134. 

5  Grant  v.  Raymond,  (1832)  6  Pet.  (U.  S.)  218;  Wheaton  V. 
Peters,  (1834)  8  Pet.  (U.  S.)  591;  Trade-Mark  Cases,  (1879)  100 
U.  S.  82;  Burrow-Giles  Lith.  Co.  v.  Sarony,  (1884)  111  U.  S.  53; 
U.  S.  v.  Duell,  (1899)  172  U.  S.  576. 

"No  State  can  limit,  control,  or  even  exercise  the  power.' 
Woollen  v.  Banker,  (1877)  2  Flipp.  (U.  S.)  33,  30  Fed.  Gas.  No 
18,030. 

sChisholm  v.  Georgia,  (1793)  2  Ball.  (U.  S.)  419;  Stuart  V. 
Laird,  (1803)  1  Cranch  (U.  S.)  299;  U.  S.  v.  Peters,  (1809)  5 
Cranch  (U.  S.)  115;  Cohen  v.  Virginia,  (1821)  6  Wheat.  (U.  S.) 
264;  Martin  v.  Hunter,  (1816)  1  Wheat.  (U.  S.)  304;  Osborn  17. 
U.  S.  Bank,  (1824)  9  Wheat.  (U.  S.)  738;  Benner  v.  Porter, 
(1850)  9  How.  (U.  S.)  235;  U.  S.  v.  Ritchie,  (1854)  17  How. 
(U.  S.)  525;  Murray  v.  Hoboken  Land,  etc.,  Co.,  (1855)  18  How. 
(U.  S.)  272;  Ex  p.  Vallandigham,  (1863)  1  Wall.  (U.  S.)  243; 
Pennoyer  v.  Neff,  (1877)  95  U.  S.  714;  U.  S.  v.  Union  Pac.  R.  Co., 
(1878)  98  U.  S.  569;  Mitchell  V.  Clark,  (1884)  110  U.  S.  633; 
Ames  v.  Kansas,  (1884)  111  U.  S.  449;  In  re  Loney,  (1890)  134 
U.  S.  373;  In  re  Green,  (1890)  134  U.  S.  377;  McAllister  v.  U.  S., 
(1891)  141  U.  S.  174;  Robertson  v.  Baldwin,  (1897)  165  U.  S. 
275;  Hanover  Nat.  Bank  v.  Moyses,  (1902)  186  U.  S.  181. 

It  is  manifest  that  the  Constitution  requires  a  supreme  court 


122 


CITIZENSHIP 


Chapter 
IV. 


Making 
war  — 
letters  of 
marque. 


offenses  against  the  law  of  nations.     (Art.  I,  Sec.  8, 
Cl.  10.)r 

18.  An  immunity.  Against  any  declaration  of 
war  or  the  granting  of  letters  of  marque  and  reprisal 
except  by  the  United  States.  'Art.  I,  Sec.  8,  Cl. 


Appro- 
priations 
for   war 
purposes. 


19.      An    immunity.    Against    any    appropria- 
tions for  war  purposes  by  Congress,  under  its  power 

to  be  established.  But  Congress  is  also  bound  "  to  create  some 
inferior  courts,  in  which  to  vest  all  that  jurisdiction  which,  under 
the  Constitution,  is  exclusively  vested  in  the  United  States,  and  of 
which  the  Supreme  Court  cannot  take  original  cognizance.  They 
might  establish  one  or  more  inferior  courts;  they  might  parcel  out 
the  jurisdiction  among  such  courts,  from  time  to  time,  at  their 
own  pleasure.  But  the  whole  judicial  power  of  the  United  States 
should  be,  at  all  times,  vested  either  in  an  original  or  appellate 
form,  in  some  courts  created  under  its  authority."  Per  Story,  J., 
in  Martin  v.  Hunter,  (1816)  1  Wheat.  (U.  S.)  331. 

7U.  S.  v.  Palmer,  (1818)  3  Wheat.  (U.  S.)  610;  U.  S.  v.  Wilt- 
berger,  (1820)  5  Wheat.  (U.  S.)  76;  U.  S.  v.  Smith,  (1820)  5 
Wheat.  (U.  S.)  153;  U.  S.  «.  Furlong,  (1820)  5  Wheat.  (U.  S.) 
184;  U.  S.  v.  Arjona,  (1887)  120  U.  S.  479. 

The  power  of  the  United  States  to  punish  an  act  constituting 
an  offense  against  the  law  of  nations  does  not  prevent  a  State  from 
providing  for  the  punishment  of  the  same  thing,  where  the  act  is 
an  offense  against  the  authority  of  the  State  as  well  as  that  of  the 
United  States.  U.  S.  v.  Arjona,  (1887)  120  U.  S.  479. 

s  Brown  v.  U.  S.,  (1814)  8  Cranch  (U.  S.)  110;  American  Ins. 
Co.  v.  356  Bales  Cotton,  (1828)  1  Pet.  (U.  S.)  511;  Mrs.  Alex- 
ander's Cotton,  (1864)  2  Wall.  (U.  S.)  404;  Miller  v.  U.  S.,  (1870) 
11  Wall.  (U.  S.)  268;  Tyler  v.  Defrees,  (1870)  11  Wall.  (U.  S.) 
331;  Stewart  v.  Kahn,  (1870)  11  Wall.  (U.  S.)  493;  Hamilton  v. 
Dillin,  (1874)  21  Wall.  (U.  S.)  73;  Lamar  v.  Browne,  (1875)  92 
U.  S.  187;  Mayfield  v.  Richards,  (1885)  115  U.  S.  137;  Chinese 
Exclusion  Case,  (1889)  130  U.  S.  581;  Church  of  Jesus  Christ  V. 
U.  S.,  (1890)  136  U.  S.  1;  Nishimura  Ekiu  v.  U.  S.,  (1892)  142 
U.  S.  651. 

"The  Federal  power  has  a  right  to  declare  and  prosecute  wars, 
and,  as  a  necessary  incident,  to  raise  and  transport  troops  through 
and  over  the  territory  of  any  State  of  the  Union.  If  this  right  is 
dependent  in  any  sense,  however  limited,  upon  the  pleasure  of  a 
State,  the  government  itself  may  be  overthrown  by  an  obstruction 
to  its  exercise."  Crandall  v.  Nevada,  (1867)  6  Wall.  (U.  S.)  44. 


CITIZENSHIP  123 


to  raise  and  support  armies,  for  a  longer  term  than    Chapter 
two  years.     (Art.  I,  Sec.  8,  01. 12.)9  IV> 


20.  A  right.    To  the  creation  and  maintenance  Nayy- 
of  a  navy  by  the  Federal  government.     (Art.  I,  Sec. 

8,  01.  13.  J1 

21.  A  right.     To  the  use  of  the  militia  under  the  gj5  of 
call  of  the  Federal  government,  for  executing  the  militia* 
laws  of  the  Union,  suppressing  insurrections,  and 
repelling  invasions.     (Art.  I,  Sec.  8,  01.  15.) 2 

22.  A  right.    To  exclusive  Federal  legislation 


over   gov- 
ernment 
territory. 


9Crandall  v.  Nevada,  (1867)  6  Wall.  (U.  S.)  35;  Nishimura 
Ekiu  v.  U.  S.,  (1892)  142  U.  S.  651. 

"The  legislature  of  the  United  States  will  be  obliged,  by  this 
provision,  once  at  least  in  every  two  years,  to  deliberate  upon  the 
propriety  of  keeping  a  military  force  on  foot;  to  come  to  a  new 
resolution  on  the  point;  and  to  declare  their  sense  of  the  matter 
by  a  formal  vote  in  the  face  of  their  constituents.  They  are  not 
at  liberty  to  vest  in  the  executive  department  permanent  funds  for 
the  support  of  an  army,  if  they  were  even  uncautious  enough  to  be 
willing  to  repose  in  it  so  improper  a  confidence."  Hamilton,  in 
The  Federalist,  No.  XXVI. 

"  Among  the  powers  assigned  to  the  national  government,  is  the 
power  '  to  raise  and  support  armies,'  and  the  power  '  to  provide 
for  the  government  and  regulation  of  the  land  and  naval  forces.' 
The  execution  of  these  powers  falls  within  the  line  of  its  duties; 
and  its  control  over  the  subject  is  plenary  and  exclusive.  .  .  . 
No  interference  with  the  execution  of  this  power  of  the  national 
government  in  the  formation,  organization,  and  government  of  its 
armies  by  any  State  officials  could  be  permitted  without  greatly 
impairing  the  efficiency  of,  if  it  did  not  utterly  destroy,  this  branch 
of  the  public  service."  Tarble's  Case,  (1871)  13  Wall.  (U.  S.)  408. 

iU.  S.  v.  Bevans,  (1818)  3  Wheat.  (U.  S.)  336;  Dynes  V. 
Hoover,  (1857)  20  How.  (U.  S.)  65. 

"  The  authority  to  build  and  equip  vessels  of  war  is,  doubtless, 
implied  in  the  power  to  'declare  war,'  but  the  same  authority  is 
more  directly  conferred  by  the  power  to  'provide  and  maintain  a 
navy.'"  U.  S.  v.  Burlington,  etc.,  Ferry  Co.,  (1884)  21  Fed.  Rep. 
340.  See  also  U.  S.  v.  Rhodes,  (1866)  1  Abb.  (U.  S.)  28,  27  Fed. 
Cas.  No.  16,151. 

2 Houston  v.  Moore,  (1820)  5  Wheat.  (U.  S.)  1;  Martin  V. 
Mott,  (1827)  12  Wheat.  (U.  S.)  19;  Luther  v.  Borden,  (1849)  7 


124 


CITIZENSHIP 


Chapter 
IV. 


Habeas 
corpus. 


by  Congress  over  a  territory  not  exceeding  ten  miles 
square  as  a  seat  of  government,  and  like  authority 
over  all  places  purchased  for  forts,  magazines,  arse- 
nals, and  dockyards.  (Art.  I,  Sec.  8,  01.  17.)3 

23.    A  right.     To  the  privilege  of  the  writ  of 
habeas  corpus,  save  when  it  may  be  suspended  for 

How.  (U.  S.)  1;  Crandall  v.  Nevada,  (1867)  6  Wall.  (U.  S.)  35; 
Texas  v.  White,  (1868)  7  Wall.  (U.  S.)  700;  Presser  v.  Illinois, 
(1886)  116  U.  S.  252. 

"  So  long  as  the  militia  are  acting  under  the  military  jurisdic- 
tion of  the  State  to  which  they  belong,  the  powers  of  legislation 
over  them  are  concurrent  in  the  general  and  State  government. 
Congress  has  power  to  provide  for  organizing,  arming,  and  disci- 
plining them;  and  this  power  being  unlimited,  except  in  the  two 
particulars  of  officering  and  training  them,  according  to  the  disci- 
pline to  be  prescribed  by  Congress,  it  may  be  exercised  to  any 
extent  that  may  be  deemed  necessary  by  Congress.  But  as  State 
militia,  the  power  of  the  State  governments  to  legislate  on  the 
same  subjects,  having  existed  prior  to  the  formation  of  the  Con- 
stitution, and  not  having  been  prohibited  by  that  instrument,  it 
remains  with  the  States,  subordinate  nevertheless  to  the  paramount 
law  of  the  general  government,  operating  upon  the  same  subject." 
Houston  v.  Moore,  (1820)  5  Wheat.  (U.  S.)  16. 

3  Hepburn  v.  Ellzey,  (1804)  2  Cranch  (U.  S.)  445;  Loughbor- 
ough  v.  Blake,  (1820)  5  Wheat.  (U.  S.)  317;  Cohen  V.  Virginia, 
(1821)  6  Wheat.  (U.  S.)  264;  American  Ins.  Co.  v.  356  Bales 
Cotton,  (1828)  1  Pet.  (U.  S.)  511;  Kendall  v.  U.  S.,  (1838)  12 
Pet.  (U.  S.)  524;  U.  S.  v.  Dewitt,  (1869)  9  Wall.  (U.  S.)  41; 
Dunphy  v.  Kleinsmith,  (1870)  11  Wall.  (U.  S.)  610;  Willard  V. 
Presbury,  (1871)  14  Wall.  (U.  S.)  676;  Kohl  v.  U.  S.,  (1875) 
91  U.  S.  367;  Phillips  v.  Payne,  (1875)  92  U.  S.  130;  U.  S.  v.  Fox, 
(1876)  94  U.  S.  315;  Ft.  Leavenworth  R.  Co.  v.  Lowe,  (1885)  114 
U.  S.  525;  Gibbons  v.  District  of  Columbia,  (1886)  116  U.  S.  404; 
Van  Brocklin  v.  Tennessee,  (1886)  117  U.  S.  151;  Stoutenburgh 
V.  Hennick,  (1889)  129  U.  S.  141;  Geofroy  v.  Riggs,  (1890)  133 
U.  S.  258;  Benson  v.  U.  S.,  (1892)  146  U.  S.  325;  Shoemaker  V. 
U.  S.,  (1893)  147  U.  S.  282;  Chappell  v.  U.  S.,  (1896)  160  U.  S. 
499;  Ohio  v.  Thomas,  (1899)  173  U.  S.  276;  Wight  v.  Davidson, 
(1901)  181  U.  S.  371. 

"  When  the  title  is  acquired  by  purchase  by  consent  of  the 
legislatures  of  the  States,  the  Federal  jurisdiction  is  exclusive  of 
all  State  authority.  This  follows  from  the  declaration  of  the  Con- 
stitution that  Congress  shall  have  *  like  authority '  over  such  places 


CITIZENSHIP  125 


facto 


public  safety  in  time  of  rebellion  or  invasion.     (Art.    Chapter 
I,  Sec.  9,  01.  2.)^  IV- 

24.  An  immunity.    Against  any  bill  of  attainder 
or  ex  post  facto  law.     (Art.  I,  Sec.  9,  Cl.  3.)5 

25.  An  immunity.    Against  any  capitation  or 

as  it  has  over  the  district  which  is  the  seat  of  government;  that  is, 
the  power  of  *  exclusive  legislation  in  all  cases  whatsoever.'  Broader 
or  clearer  language  could  not  be  used  to  exclude  all  other  authority 
than  that  of  Congress."  Ft.  Leavenworth  R.  Co.  v.  Lowe,  (1885) 
114  U.  S.  532. 

*U.  S.  v.  Hamilton,  (1795)  3  Dall.  (U.  S.)  17;  Hepburn  v. 
Ellzey,  (1804)  2  Cranch  (U.  S.)  445;  Ex  p.  Bollman,  (1807)  4 
Cranch  (U.  S.)  75;  Ex  p.  Kearney,  (1822)  7  Wheat.  (U.  S.)  38; 
Ex  p.  Watkins,  (1830)  3  Pet.  (U.  S.)  193;  Ex  p.  Milburn,  (1835) 
9  Pet.  (U.  S.)  704;  Holmes  v.  Jennison,  (1840)  14  Pet.  (U.  S.) 
540;  Ex  p.  Dorr,  (1845)  3  How.  (U.  S.)  103;  Luther  v.  Borden, 
(1849)  7  How.  (U.  S.)  1;  Ableman  v.  Booth,  (1858)  21  How. 
(U.  S.)  506;  Ex  p.  Vallandigham,  (1863)  1  Wall.  (U.  S.)  243; 
Ex  p.  Milligan,  (1866)  4  Wall.  (U.  S.)  2;  Ex  p.  McCardle,  (1868) 
7  Wall.  (U.  S.)  506;  Ex  p.  Yerger,  (1868)  8  Wall.  (U.  S.)  85; 
Tarble's  Case,  (1871)  13  Wall.  (U.  S.)  397;  Ex  p.  Lange,  (1873) 
18  Wall.  (U.  S.)  163;  Ex  p.  Parks,  (1876)  93  U.  S.  18;  Ex  p. 
Karstendick,  (1876)  93  U.  S.  396;  Ex  p.  Virginia,  (1879)  100 
U.  S.  339;  In  re  Neagle,  (1890)  135  U.  S.  1;  In  re  Frederich, 
(1893)  149  U.  S.  70. 

"  The  Constitution  also  declares  that  the  privilege  of  the  writ 
of  habeas  corpus  shall  not  be  suspended,  unless  when  in  cases  of 
rebellion  or  invasion  the  public  safety  may  require  it.  No  express 
power  is  given  to  Congress  to  secure  this  invaluable  right  in  the 
non-enumerated  cases,  or  to  suspend  the  writ  in  cases  of  rebellion 
or  invasion.  And  yet  it  would  be  difficult  to  say,  since  this  great 
writ  of  liberty  is  usually  provided  for  by  the  ordinary  functions  of 
legislation,  and  can  be  effectually  provided  for  only  in  this  way, 
that  it  ought  not  to  be  deemed  by  necessary  implication  within  the 
scope  of  the  legislative  power  of  Congress."  Prigg  v.  Pennsyl- 
vania, (1842)  16  Pet.  (U.  S.)  619. 

5  Fletcher  v.  Peck,  (1810)  6  Cranch  (U.  S.)  87;  Ogden  V.  Saun- 
ders,  (1827)  12  Wheat.  (U.  S.)  213;  Watson  v.  Mercer,  (1834)  8 
Pet.  (U.  S.)  88;  Carpenter  v.  Pennsylvania,  (1854)  17  How.  (U. 
S.)  456;  Locke  v.  New  Orleans,  (1866)  4  Wall.  (U.  S.)  172;  Cum- 
mings  v.  Missouri,  (1866)  4  Wall.  (U.  S.)  277;  Ex  p.  Garland, 
(1866)  4  Wall.  (U.  S.)  333;  Drehman  V.  Stifle,  (1869)  8  Wall. 
<U.  S.)  595;  Klinger  v.  Missouri,  (1871)  13  Wall.  (U.  S.)  257; 


126  CITIZENSHIP 


Chapter  other  direct  tax  except  in  proportion  to  the  census 
IV>  above  provided  for.  (Art.  I,  Sec.  9,  01.  4.)6 

duties.1  26.  An  immunity.  Against  any  tax  or  duty  on 

articles  exported  from  any  State.  (Art.  I,  Sec.  9, 
01.  5.)7 

ports.  27.  An  immunity.  Against  any  preference  to 

the  ports  of  one  State  over  those  of  another;  and 
against  the  entrance,  clearance,  or  payment  of 
duties  by  vessels  bound  to  or  from  the  ports  of  one 
State  to  or  from  the  ports  of  another  State.  (Art. 
I,  Sec.  9,  01.  6.)8 

™5ty?£  28.  An  immunity.  Against  the  granting  of  any 
titles  of  nobility  by  the  United  States.  (Art.  I,  Sec. 
9,  01.  8.) 

5ce,atbey'  29.    Immunities.    Against  any  treaty,  alliance, 

the"  States. 

Pierce  V.  Carskadon,  (1872)  16  Wall.  (U.  S.)  234;  Hopt  v.  Utah, 
(1884)  110  U.  S.  574;  Cook  v.  U.  S.,  (1891)  138  U.  S.  157;  Neely 
v.  Henkel,  (1901)  180  U.  S.  109;  Southwestern  Coal  Co.  v.  Me- 
Bride,  (1902)  185  U.  S.  499. 

e License  Tax  Cases,  (1866)  5  Wall.  (U.  S.)  462;  Springer  v. 
U.  S.,  (1881)  102  U.  S.  586;  Nicol  v.  Ames,  (1899)  173  U.  S.  509. 

"  If  Congress  sees  fit  to  impose  a  capitation,  or  other  direct  tax, 
it  must  be  laid  in  proportion  to  the  census;  if  Congress  determines 
to  impose  duties,  imposts,  and  excises,  they  must  be  uniform 
throughout  the  United  States.  These  are  not  strictly  limitations 
of  power.  They  are  rules  prescribing  the  mode  in  which  it  shall 
be  exercised."  Veazie  Bank  v.  Fenno,  (1869)  8  Wall.  (U.  S.)  541. 

7Cooley  V.  Board  of  Wardens,  (1851)  12  How.  (U.  S.)  299; 
Pace  v.  Burgess,  (1875)  92  U.  S.  372;  Turpin  v.  Burgess,  (1886) 
117  U.  S.  504;  Pittsburg,  etc.,  Coal  Co.  v.  Bates,  (1895)  156  U.  S. 
577;  Nicol  v.  Ames,  (1899)  173  U.  S.  509;  Williams  v.  Fears, 

(1900)  179  U.  S.  270;   De  Lima  V.  Bidwell,    (1901)    182  U.  S.  1; 
Dooley  v.  U.  S.,   (1901)   183  U.  S.  151;  Fourteen  Diamond  Rings  v. 
U.  S.   (1901)   183  U.  S.  176;  Cornell  v.  Coyne,  (1904)   192  U.  S.  418. 

"  The  purpose  of  the  restriction  is  that  exportation,  all  expor- 
tation, shall  be  free  from  national  burden."  Fairbank  v.  U.  S., 

(1901)  181  U.  S.  292. 

sCooley  v.  Board  of  Wardens,  (1851)  12  How.  (U.  S.)  299; 
Pennsylvania  v.  Wheeling,  etc.,  Bridge  Co.,  (1855)  18  How.  (U.  S.) 
421;  Munn  v.  Illinois,  (1876)  94  U.  S.  113;  Northwestern  Union 


CITIZENSHIP  127 


or  confederation  entered  into  by  any  State,  and  the    chapter 
granting  of  letters  of  marque  or  reprisal  by  any          ' 
State,9  and  against  the  coinage  of  money  or  emission 
of  bills  of  credit  by  any  State  and  the  making  of 
anything  but  gold  and  silver  coin  a  tender  in  pay- 
ment of  debts  by  any  State ;  and  the  passage  of  any 
bill  of  attainder  or  ex  post  facto  law,  or  law  impair- 
ing the  obligation  of  contracts,  or  grant  of  any  title 
of  nobility  by  any  State.     (Art.  I,  Sec.  10,  01.  I.)1 

Packet  Co.  v.  St.  Louis,  (1879)  100  U.  S.  423;  Cincinnati,  etc., 
Packet  Co.  v.  Catlettsburg,  (1881)  105  U.  S.  559;  Spraigue  V. 
Thompson,  (1886)  118  U.  S.  90;  Morgan's  Steamship  Co.  v.  Louisi- 
ana Board  of  Health,  (1886)  118  U.  S.  455;  Johnson  v.  Chicago, 
etc.,  Elevator  Co.,  (1886)  119  U.  S.  388. 

This  clause  "  is  a  limitation  upon  the  power  of  Congress  to  reg- 
ulate commerce,  for  the  purpose  of  producing  entire  commercial 
equality  within  the  United  States,  and  also  a  prohibition  upon  the 
States  to  destroy  such  equality  by  any  legislation  prescribing  a 
condition  upon  which  vessels  bound  from  one  State  shall  enter  the 
ports  of  another  State."  Per  Mr.  Justice  Wayne,  in  Norris  V. 
Boston,  (1849)  7  How.  (U.  S.)  414.  See  also  Pennsylvania  V. 
Wheeling,  etc.,  Bridge  Co.,  (1855)  18  How.  (U.  S.)  433;  Williams 
v.  The  Lizzie  Henderson,  (1880)  29  Fed.  Gas.  No.  17,726a. 

"  This  provision  operates  only  as  a  limitation  of  the  powers  of 
Congress,  and  in  no  respect  affects  the  States  in  the  regulation  of 
their  domestic  affairs."  Munn  v.  Illinois,  (1876)  94  U.  S.  135. 

9"  A  State  is  forbidden  to  enter  into  any  treaty,  alliance,  or 
confederation.  If  these  compacts  are  with  foreign  nations,  they 
interfere  with  the  treaty-making  power  which  is  conferred  entirely 
on  the  general  government;  if  with  each  other,  for  political  pur- 
poses, they  can  scarcely  fail  to  interfere  with  the  general  purpose 
and  intent  of  the  Constitution.  To  grant  letters  of  marque  and 
reprisal,  would  lead  directly  to  war;  the  power  of  declaring  which 
is  expressly  given  to  Congress."  Per  Mr.  Chief  Justice  Marshall, 
in  Barren  v.  Baltimore,  (1833)  7  Pet.  (U.  S.)  249. 

i  Decisions  relating  to  making  anything  but  gold  and  silver  coin 
a  tender  in  payment  of  debts.  Craig  V.  Missouri,  (1830)  4  Pet.  (U. 
S.)  410;  Byrne  v.  Missouri,  (1834)  8  Pet.  (U.  S.)  40;  Briscoe  V. 
Kentucky  Com.  Bank,  (1837)  11  Pet.  (U.  S.)  257;  Darrington  V. 
Branch  Bank,  (1851)  13  How.  (U.  S.)  12. 

Decisions  relating  to  ex  post  facto  law.  Calder  v.  Bull,  (1798) 
3  Dall.  (U.  S.)  386;  Watson  v.  Mercer,  (1834)  8  Pet.  (U.  S.)  88; 


128  CITIZENSHIP 


Chapter     Carpenter  v.  Pennsylvania,    (1854)    17  How.    (U.  S.)    456;  Locke  v. 
IV.         New  Orleans,   (1866)   4  Wall.    (U.  S.)    172;  Ex  p.  Garland,   (1866) 

4  Wall.   (U.  S.)  333;  Gut  v.  Minnesota,  (1869)  9  Wall.   (U.  S.)   35; 

Kring  v.  Missouri,  (1882)  107  U.  S.  221;  Jaehne  v.  New  York, 
(1888)  128  U.  S.  189;  Medley,  Petitioner,  (1890)  134  U.  S.  160; 
Holden  v.  Minnesota,  (1890)  137  U.  S.  483;  Hawker  v.  New  York, 
(1898)  170  U.  S.  189;  Thompson  v.  Missouri,  (1898)  171  U.  S., 
380;  McDonald  v.  Massachusetts,  (1901)  180  U.  S.  311;  Mallett  V. 
North  Carolina,  (1901)  181  U.  S.  589;  Reetz  v.  Michigan,  (1903) 
188  U.  S.  505. 

Decisions  relating  to  laws  impairing  the  obligation  of  contracts. 
Fletcher  v.  Peck,  (1810)  6  Cranch  (U.  S.)  87;  New  Jersey  v.  Wil- 
son, (1812)  7  Cranch  (U.  S.)  164;  Sturges  v.  Crowninshield,  (1819) 
4  Wheat.  (U.  S.)  122;  M'Millan  v.  M'Neill,  (1819)  4  Wheat.  (U. 
S.)  209;  Dartmouth  College  v.  Woodward,  (1819)  4  Wheat.  (U.  S.) 
518;  Owings  v.  Speed,  (1820)  5  Wheat.  (U.  S.)  420;  Farmers', 
etc.,  Bank  v.  Smith,  (1821)  6  Wheat.  (U.  S.)  131;  Green  v.  Biddle, 
(1823)  8  Wheat.  (U.  S.)  1;  Ogden  v.  Saunders,  (1827)  12  Wheat. 
(U.  S.)  213;  Mason  v.  Haile,  (1827)  12  Wheat.  (U.  S.)  370; 
Satterlee  v.  Matthewson,  (1829)  2  Pet.  (U.  S.)  380;  Jackson  v. 
Lamphire,  (1830)  3  Pet.  (U.  S.)  280;  Providence  Bank  v.  Billings, 
(1830)  4  Pet.  (U.  S.)  514;  Mumma  v.  Potomac  Co.,  (1834)  8  Pet. 
(U.  S.)  281;  Beers  v.  Haughton,  (1835)  9  Pet.  (U.  S.)  329; 
Charles  River  Bridge  v.  Warren  Bridge,  (1837)  11  Pet.  (U.  S.) 
420;  Armstrong  v.  Treasurer,  (1842)  16  Pet.  (U.  S.)  281;  Bronson 
V.  Kinzie,  (1843)  1  How.  (U.  S.)  311;  McCracken  v.  Hayward, 
(1844)  2  How.  (U.  S.)  608;  Gordon  v.  Appeal  Tax  Ct.,  (1845)  3 
How.  (U.  S.)  133;  Maryland  v.  Baltimore,  etc.,  R.  Co.,  (1845)  3 
How.  (U.  S.)  534;  Neil  v.  Ohio,  (1845)  3  How.  (U.  S.)  720; 
Cook  v.  Moffat,  (1847)  5  How.  (U.  S.)  295;  Planters'  Bank  v. 
Sharp,  (1848)  6  How.  (U.  S.)  301;  West  River  Bridge  Co.  v.  Dix, 
(1848)  6  How.  (U.  S.)  507;  Crawford  v.  Branch  Bank,  (1849)  7 
How.  (U.  S.)  279;  Woodruff  v.  Trapnall,  (1850)  10  How.  (U.  S.) 
190;  Paup  V.  Drew,  (1850)  10  How.  (U.  S.)  218;  Baltimore,  etc., 
R.  Co.  v.  Nesbit,  (1850)  10  How.  (U.  S.)  395;  Butler  v.  Pennsyl- 
vania, (1850)  10  How.  (U.  S.)  402;  Richmond,  etc.,  R.  Co.  v. 
Louisa  R.  Co.,  (1851)  13  How.  (U.  S.)  71;  Vincennes  University 
v.  Indiana,  (1852)  14  How.  (U.  S.)  268;  Curran  v.  Arkansas,  (1853) 

15  How.  (U.  S.)  304;  Piqua  Branch  of  State  Bank  v.  Knoop,  (1853) 

16  How.    (U.  S.)    369;  Dodge  v.  Woolsey,    (1855)    18  How.    (U.  S.) 
331;  Beers  v.  Arkansas,   (1857)   20  How.    (U.  S.)   527;  Aspinwall  v. 
Daviess    County,     (1859)     22    How.     (U.    S.)     364;    Christ    Church 
V.  Philadelphia  County,    (1860)    24   How.    (U.   S.)    300;    Howard   v. 
Bugbee,    (1860)    24   How.    (U.   S.)    461;    Jefferson   Branch    Bank   v. 
Skelly,  (1861)    1  Black   (U.  S.)  436;  Franklin  Branch  Bank  v.  Ohio, 
(1861)    1    Black    (U.    S.)    474;    Wabash,  etc.,   Canal   Co.   v.   Beers, 


CITIZENSHIP  129 


(1862)  2  Black   (U.  S.)   448;  Oilman  v.  Sheboygan,   (1862)   2  Black     Chapter 
(U.  S.)   510;  Passaic  River,  etc.,  Bridge  v.  Hoboken  Land,  etc.,  Co.,          IV. 

(1863)  1  Wall.    (U.  S.)    116;  Hawthorne  v.  Calef,    (1864)    2  Wall. 
(U.  S.)   10;  Binghamton  Bridge,   (1865)   3  Wall.   (U.  S.)  51;  Wash- 
ington,  etc.,   Turnpike  Co.   v.   Maryland,    (1865)    3   Wall.    (U.   S.) 
210;  Missouri,  etc.,  R.  Co.  v.  Rock,    (1866)   4  Wall.    (U.  S.)    177; 
Cummings  v.  Missouri,   (1866)   4  Wall.   (U.  S.)   277;  Von  Hoffman 
v.  Quincy,  (1866)  4  Wall.   (U.  S.)  535;  Mulligan  v.  Corbins,  (1868) 
7  Wall.    (U.  S.)   487;   Furman  v.  Nichol,    (1868)    8  Wall.    (U.  S.) 
44;  Home  of  Friendless  v.  Rouse,   (1869)  8  Wall.   (U.S.)  430;  Wash- 
ington University  v.  Rouse,    (1869)    8  Wall.    (U.  S.)    439;   Butz  17. 
Muscatine,  (1869)  8  Wall.  (U.  S.)  575;  Drehman  v.  Stifle,  (1869)  8 
Wall.    (U.  S.)    595;  Hepburn  V.  Griswold,    (1869)    8  Wall.    (U.  S.) 
603;  Ohio,  etc.,  R.  Co.  v.  McClure,    (1870)    10  Wall.    (U.  S.)    511; 
Legal  Tender  Cases,    (1870)    12  Wall.   (U.  S.)   457;  Curtis  v.  Whit- 
ney,   (1871)     13    Wall.    (U.    S.)    68;    Pennsylvania    College   Cases, 
(1871)    13   Wall.    (U.  S.)    190;    Wilmington,  etc.,   R.   Co.  V.   Reid, 

(1871)  13  Wall.   (U.  S.)   264;  East  Saginaw  Salt  Mfg.  Co.  v.  East 
Saginaw,    (1871)    13  Wall.    (U.  S.)    373;  White  V.  Hart,    (1871)    13 
Wall.    (U.  S.)    646;  Osborn  V.  Nicholson,    (1871)    13  Wall.    (U.  S.) 
654;    Norwich,   etc.,   R. 'Co.  v.  Johnson,    (1872)    15   Wall.    (U.   S.) 
195;    State  Tax  on  Foreign-held  Bonds,    (1872)    15  Wall.    (U.  S.) 
300;   Tomlinson  v.  Jessup,    (1872)    15  Wall.    (U.  S.)    454;  Tomlin- 
son  v.  Branch,    (1872)    15  Wall.    (U.  S.)    460;  Miller  v.  New  York, 

(1872)  15  Wall.   (U.  S.)  478;  Holyoke  Water-Power  Co.  v.  Lyman, 
(1872)    15   Wall.    (U.   S.)    500;    Gunn   v.   Barry,    (1872)    15   Wall. 
(U.  S.)    610;   Humphrey  v.  Pegues,    (1872)    16  Wall.    (U.  S.)   244; 
Walker  v.  Whitehead,   (1872)   16  Wall.   (U.  S.)   314;  Sohn  v.  Water- 
son,    (1878)    17  Wall.    (U.  S.)    596;  Barings  v.  Dabney,   (1873)    19 
Wall.    (U.    S.)    1;    Head  v.   Missouri   University,    (1873)    19   Wall. 
(U.  S.)    526;   Pacific  R.  Co.  v.  Maguire,    (1873)    20  Wall.    (U.  S.) 
36;  Garrison  v.  New  York,  (1874)   21  Wall.  (U.  S.)   196;  Ochiltree 
v.  Iowa  R.  Contracting  Co.,  (1874)   21  Wall.  (U.  S.)  249;  Wilming- 
ton, etc.,  R.  Co.  v.  King,   (1875)    91   U.  S.  3;  Moultrie  County  v. 
Rockingham  Ten-Cent  Sav.-Bank,    (1875)    92  U.  S.  631;  Home  Ins. 
Co.  v.  Augusta,    (1876)    93  U.  S.   116;   West  Wisconsin  R.  Co.  v. 
Trempealeau   County,    (1876)    93  U.   S.   595;   New  Jersey  v.  Yard, 
(1877)   95  U.  S.  104;  Cairo,  etc.,  R.  Co.  v.'Hecht,   (1877)  95  U.  S. 
168;   Terry  v.  Anderson,    (1877)    95  U.  S.  628;   Farrington  V.  Ten- 
nessee,   (1877)    95  U.  S.  679;   Blount  v.  Windley,    (1877)    95  U.  S. 
173;  Murray  v.  Charleston,   (1877)  96  U.  S.  432;  Edwards  V.  Kear- 
zey,    (1877)   96  U.  S.  595;  Tennessee  v.  Sneed,    (1877)   96  U.  S.  69; 
Williams  v.  Bruffy,   (1877)   96  U.  S.  176;  Richmond,  etc.,  R.  Co.  V. 
Richmond,   (1877)   96  U.  S.  521;  Boston  Beer  Co.  v.  Massachusetts, 

(1877)  97   U.   S.   25;  Northwestern  Fertilizing  Co.  v.  Hyde  Park, 

(1878)  97  U.  S.  659;  Memphis,  etc.,  R.  Co.  v.  Gaines,    (1878)    97 

9 


130  CITIZENSHIP 


Chapter     U.  S.  697;  U.  S.  v.  Memphis,   (1877)  97  U.  S.  284;  Keith  v.  Clark, 
IV.          (1878)    97  U.  S.  454;  Atlantic,  etc.,  R.  Co.  v.  Georgia,    (1878)    98 

U.  S.  359;  Northwestern  University  v.  People,   (1878)   99  U,  S.  309; 

Newton  v.  Mahoning  County,  (1879)  100  U.  S.  548;  Memphis,  etc., 
R.  Co.  v.  Tennessee,  (1879)  101  U.  S.  337;  Wright  v.  Nagle,  (1879) 
101  U.  S.  791;  Stone  v.  Mississippi,  (1879)  101  U.  S.  814;  South, 
etc.,  Alabama  R.  Co.  v.  Alabama,  (1879)  101  U.  S.  832;  Louisiana 
V.  New  Orleans,  (1880)  102  U.  S.  203;  Hall  v.  Wisconsin,  (1880) 
103  U.  S.  5;  Penniman's  Case,  (1880)  103  U.  S.  714;  Wolff  v.  New 
Orleans,  (1880)  103  U.  S.  358;  Koshkonong  v.  Burton,  (1882)  104 
U.  S.  668;  New  Haven,  etc.,  R.  Co.  v.  Hamersley,  (1881)  104  U.  S. 
1;  Clay  County  v.  Savings  Soc.,  (1882)  104  U.  S.  579;  New  York 
Guaranty,  etc.,  Co.  v.  Board  of  Liquidation,  (1881)  105  U.  S.  622; 
Greenwood  v.  Union  Freight  R.  Co.,  (1881)  105  U.  S.  13;  St.  Anna's 
Asylum  v.  New  Orleans,  (1881)  105  U.  S.  362;  Louisiana  v.  Pils- 
bury,  (1881)  105  U.  S.  278;  New  Orleans  v.  Morris,  (1881)  105 
U.  S.  600;  Close  V.  Glenwood  Cemetery,  (1882)  107  U.  S.  466;  An- 
toni  v.  Greenhow,  (1882)  107  U.  S.  769;  Vance  v.  Vance,  (1883) 
108  U.  S.  514;  Memphis  Gas  Light  Co.  v.  Shelby  County  Taxing 
Dist.,  (1883)  109  U.  S.  398;  Canada  Southern  R.  Co.  v.  Gebhard, 
(1883)  109  U.  S.  527;  Louisiana  v.  New  Orleans,  (1883)  109  U.  S. 
285;  Gilfillan  v.  Union  Canal  Co.,  (1883)  109  U.  S.  401;  Spring 
Valley  Water  Works  v.  Schottler,  (1884)  110  U.  S.  347;  Butchers' 
Union  Slaughter-House,  etc.,  Co.  v.  Crescent  City  Live- Stock  Land- 
ing, etc.,  Co.,  (1884)  111  U.  S.  746;  Nelson  v.  Police  Jury,  (1884) 
111  U.  S.  716;  Marye  v.  Parsons,  (1884)  114  U.  S.  325;  Poindexter 
V.  Greenhow,  (1884)  114  U.  S.  270;  Amy  v.  Shelby  County  Taxing 
Dist.,  (1885)  114  U.  S.  387;  Allen  v.  Baltimore,  etc.,  R.  Co.,  (1884) 
114  U. -S.  311;  Effinger  v.  Kenney,  (1885)  115  U.  S.  566;  New  Or- 
leans Gas  Co.  v.  Louisiana  Light  Co.,  (1885)  115  U.  S.  650;  Louis- 
ville Gas  Co.  v.  Citizens'  Gas  Co.,  (1885)  115  U.  S.  683;  New  Orleans 
Water- Works  Co.  v.  Rivers,  (1885)  115  U.  S.  674;  Fisk  v.  Jefferson 
Police  Jury,  (1885)  166  U.  S.  131;  Mobile  v.  Watson,  (1886)  116 
U.  S.  289;  New  Orleans  v.  Houston,  (1886)  119  U.  S.  265;  St.  Tam- 
many Water- Works  v.  New  Orleans  Water-Works,  (1887)  120  U.  S. 
64;  Church  v.  Kelsey,  (1887)  121  U.  S.  282;  Lehigh  Water  Co.  v. 
Easton,  (1887)  121  U.  S.  388;  Seibert  v.  Lewis,  (1887)  122  U.  S. 
284;  New  Orleans  Water- Works  Co.  v.  Louisiana  Sugar  Refining 
Co.,  (1888)  125  U.  S.  18;  Maynard  v.  Hill,  (1888)  125  U.  S.  190; 
Denny  v.  Bennett,  (1888)  128  U.  S.  489;  Williamson  v.  New  Jersey, 

(1889)  130  U.    S.    189;    Freeland   v.   Williams,    (1889)    131    U.    S. 
405;  Campbell  v.  Wade,   (1889)    132  U.  S.  34;  Pennsylvania  R.  Co. 
V.  Miller,    (1889)    132  U.  S.  75;   Pennie  v.  Reis,    (1889)    132  U.  S. 
464;   Hans  v.  Louisiana,    (1890)    134  U.   S.   1;   Crenshaw  v.  U.   S., 

(1890)  134  U.  S.  99;  Chicago,  etc.,  R.  Co.  v.  Minnesota,   (1890)   134 
U.   S.  418;   Minneapolis  Eastern  R.   Co.  v.  Minnesota,    (1890)    134 


CITIZENSHIP 


U.  S.  467;  Hill  v.  Merchants'  Mut.  Ins.  Co.,  (1890)   134  U.  S.  515;      Chapter 
McGahey  v.  Virginia,    (1890)    135  U.  S.  662;  U.  S.  v.  North  Caro-          IV. 

lina,    (1890)    136  U.  S.  211;  Wheeler  v.  Jackson,   (1890)    137  U.  S.   

245;  Sioux  City  St.  R.  Co.  v.  Sioux  City,  (1891)  138  U.  S.  98; 
Wheeling,  etc.,  Bridge  Co.  v.  Wheeling  Bridge  Co.,  (1891)  138  U.  S. 
287;  Pennoyer  v.  McConnaughy,  (1891)  140  U.  S.  1;  Scotland 
County  Ct.  v.  U.  S.,  (1891)  140  U.  S.  41;  Essex  Public  Road  Board 
v.  Skinkle,  (1891)  140  U.  S.  334;  Stein  v.  Bienville  Water  Supply 
Co.,  (1891)  141  U.  S.  67;  New  Orleans  v.  New  Orleans  Water- Works 
Co.,  (1891)  142  U.  S.  79;  New  Orleans  City,  etc.,  R.  Co.  v.  New 
Orleans,  (1892)  143  U.  S.  192;  Louisville  Water  Co.  v.  Clark, 
(1892)  143  U.  S.  1;  New  York  v.  Squire,  (1892)  145  U.  S.  175; 
Baker  v.  Kilgore,  (1892)  145  U.  S.  487;  Morley  v.  Lake  Shore,  etc., 
R.  Co.  (1892)  146  U.  S.  162;  Hamilton  Gas  Light,  etc.,  Co.  V. 
Hamilton,  (1892)  146  U.  S.  258;  Wilmington,  etc.,  R.  Co.  v.  Als- 
brook,  (1892)  146  U.  S.  279;  Illinois  Central  R.  Co.  v.  Illinois, 
(1892)  146  U.  S.  387;  Bier  v.  McGehee,  (1893)  148  U.  S.  137; 
People  v.  Cook,  (1893)  148  U.  S.  397;  New  York,  etc.,  R.  Co.  V. 
Bristol,  (1894)  151  U.  S.  556;  Bryan  v.  Board  of  Education, 
(1894)  151  U.  S.  639;  Duncan  v.  Missouri,  (1894)  152  U.  S.  377; 
New  Orleans  v.  Benjamin,  (1894)  153  U.  S.  411;  Eagle  Ins.  Co.  V. 
Ohio,  (1894)  153  U.  S.  446;  New  York,  etc.,  R.  Co.  v.  Pennsylvania, 
(1894)  153  U.  S.  628;  Mobile,  etc.,  R.  Co.  v.  Tennessee,  (1894)  153 
U.  S.  486;  U.  S.  v.  Thoman,  (1895)  156  U.  S.  353;  St.  Louis,  etc., 
R.  Co.  v.  Gill,  (1895)  156  U.  S.  649;  New  Orleans  City,  etc.,  R.  Co. 
v.  Louisiana,  (1895)  157  U.  S.  219;  Bank  of  Commerce  v.  Tennes- 
see, (1896)  161  U.  S.  134;  Baltzer  v.  North  Carolina,  (1896)  161 
U.  S.  240;  Pearsall  v.  Great  Northern  R.  Co.,  (1896)  161  U.  S. 
646;  Louisville,  etc.,  R.  Co.  v.  Kentucky,  (1896)  161  U.  S.  677; 
Woodruff  v.  Mississippi,  (1896)  162  U.  S.  291;  Gibson  v.  Mississippi, 

(1896)  162  U.  S.  565;   Barnitz  V.  Beverly,    (1896)    163  U.  S.  118; 
Hanford  v.  Da  vies,   (1896)   163  U.  S.  273;  Covington,  etc.,  Turnpike 
Road  Co.  V.  Sandford,   (1896)   164  U.  S.  578;  St.  Louis,  etc.,  R.  Co. 
V.  Mathews,  (1897)   165  U.  S.  1;  Grand  Lodge,  etc.,  v.  New  Orleans, 

(1897)  166   U.   S.    143;    Baltimore  V.   Baltimore   Trust,   etc.,   Co., 

(1897)  166  U.  S.  673;  City  R.  Co.  v.  Citizens'  St.  R.  Co.,    (1897) 
166  U.  S.  557;  Wabash  R.  Co.  v.  Defiance,    (1897)    167  U.  S.  88; 
Shapleigh  v.  San  Angelo,   (1897)    167  U.  S.  646;  St.  Anthony  Falls 
Water  Power  Co.  v.  St.  Paul  Water  Com'rs,   (1897)   168  U.  S.  349; 
Douglas  v.  Kentucky,   (1897)    168  U.  S.  488;  Galveston,  etc.,  R.  Co. 
v.   Texas,    (1898)    170  U.    S.   226;    Houston,  etc.,  R.   Co.   v.  Texas, 

(1898)  170  U.   S.   243;    Williams  v.  Eggleston,   <1898)    170  U.   S. 
304;   Chicago,  etc.,  R.  Co.  v.  Nebraska,    (1898)    170  U.  S.  57;  Mis- 
souri v.  Murphy,  (1898)    170  U.  S.  78;  Louisville  Water  Co.  v.  Ken- 
tucky,   (1898)    170  U.  S.  127;  Walla  Walla  v.  Walla  Walla  Water 
Co.,   (1898)    172  U.  S.  1;  McCullough  v.  Virginia,   (1898)    172  U.  S. 


132  CITIZENSHIP 


Chapter          39.    An  immunity.     From  the  laying  of  any  im- 
! —  post  or  duties  on  imports  or  exports  by  any  State, 


eSposby      without  the  consent  of  Congress.     (Art.  I,  Sec.  10, 

the 'States.    0^  2.)2 

102;  Connecticut  Mut.  L.  Ins.  Co.  v.  Spratley,  (1899)  172  U.  S. 
602;  Citizens'  Sav.  Bank  v.  Owensboro,  (1899)  173  U.  S.  636;  Lake 
Shore,  etc.,  R.  Co.  v.  Smith,  (1899)  173  U.  S.  684;  Covington  v. 
Kentucky,  (1899)  173  U.  S.  231;  Henderson  Bridge  Co.  v.  Hender- 
son, (1899)  173  U.  S.  592;  Walsh  v.  Columbus,  etc.,  R.  Co.,  (1900) 
176  U.  S.  469;  Adirondack  R.  Co.  v.  New  York,  (1900)  176  U.  S. 
335;  New  York  L.  Ins.  Co.  v.  Cravens,  (1900)  178  U.  S.  389;  Looker 
v.  Maynard,  (1900)  179  U.  S.  46;  Stearns  v.  Minnesota,  (1900)  179 
U.  S.  223;  Illinois  Cent.  R.  Co.  v.  Adams,  (1901)  180  U.  S.  28;  St. 
Paul  Gas  Light  Co.  v.  St.  Paul,  (1901)  181  U.  S.  142;  Red  River 
Valley  Nat.  Bank  v.  Craig,  (1901)  181  U.  S.  548;  Bedford  v. 
Eastern  Bldg.,  etc.,  Assoc.,  (1901)  181  U.  S.  227;  Knoxville  Iron 
Co.  v.  Harbison,  (1901)  183  U.  S.  13;  Orr  v.  Oilman,  (1902)  183 
U.  S.  278;  Wilson  v.  Iseminger,  (1902)  185  U.  S.  55;  Vicksburg 
Water- Works  Co.  v.  Vicksburg,  (1902)  185  U.  S.  65;  Hanover  Nat. 
Bank  v.  Moyses,  (1902)  186  U.  S.  181;  Northern  Cent.  R.  Co.  v. 
Maryland,  (1902)  187  U.  S.  258;  Oshkosh  Waterworks  Co.  v.  Osh- 
kosh,  (1903)  187  U.  S.  437;  Diamond  Glue  Co.  v.  U.  S.  Glue  Co., 
(1903)  187  U.  S.  611;  Weber  v.  Rogan,  (1903)  138  U.  S.  10;  Black- 
stone  i?.  Miller,  (1903)  188  U.  S.  189;  Waggoner  v.  Flack,  (1903) 
188  U.  S.  595;  Owensboro  v.  Owensboro  Waterworks  Co.,  (1903) 
191  U.  S.  358;  Wisconsin,  etc.,  R.  Co.  v.  Powers,  (1903)  191  U.  S. 
379;  Deposit  Bank  v.  Frankfort,  (1903)  191  U.  S.  499;  Citizens' 
Bank  v.  Parker,  (1904)  192  U.  S.  73;  Stanislaus  County  v.  San  Joa- 
quin,  etc.,  Canal,  etc.,  Co.,  (1904)  192  U.  S.  201. 

2McCulloch  v.  Maryland,  (1819)  4  Wheat.  (U.  S.)  316;  Gibbons 
v.  Ogden,  (1824)  9  Wheat.  (U.  S.)  1;  Brown  v.  Maryland,  (1827) 
12  Wheat.  (U.  S.)  419;  Mager  v.  Grima,  (1850)  8  How.  (U.  S.) 
490;  Cooley  v.  Board  of  Wardens,  (1851)  12  How.  (U.  S.)  299; 
Almy  17.  California,  (1860)  24  How.  (U.  S.)  169;  License  Tax  Cases, 
(1866)  5  Wall.  (U.  S.)  462;  Crandall  v.  Nevada,  (1867)  6  Wall. 
(U.  S.)  35;  Waring  v.  Mobile,  (1868)  8  Wall.  (U.  S.)  110;  Wood- 
ruff v.  Parham,  (1868)  8  Wall.  (U.  S.)  123;  Hinson  v.  Lott,  (1868) 
8  Wall.  (U.  S.)  148;  State  Tonnage  Tax  Cases,  (1870)  12  Wall. 
(U.  S.)  204;  State  Tax  on  Railway  Gross  Receipts,  (1872)  15  Wall. 
(U.  S.)  284;  Inman  Steamship  Co.  17.  Tinker,  (1876)  94  U.  S.  238; 
Cook  v.  Pennsylvania,  (1878)  97  U.  S.  566;  Keokuk  Northern  Line 
Packet  Co.  v.  Keokuk,  (1877)  95  U.  S.  80;  People  v.  Compagnie 
Generale  Transatlantique,  (1882)  107  U.  S.  59;  Turner  v.  Mary- 
land, (1882)  107  U.  S.  38;  Brown  17.  Houston,  (1885)  114  U.  S. 


CITIZENSHIP  133 


31.     Immunities.     From   any   duty    of   tonnage    Chapter 
laid  by  any  State  without  the  consent  of  Congress,  I — 


or  the  keeping  of  troops  or  ships  of  war  in  time  of 
pea,ce  by  any  State,  or  the  entering  into  an  agree-  §£"  states, 
ment  or  compact  with  another  State  or  a  foreign 
power,  or  engaging  in  war  unless  actually  invaded 
or  in  such  immediate  danger  as  will  not  admit  of 
delay.  (Art.  I,  Sec.  10,  01.  3.)3 

622;  Coe  v.  Errol,  (1886)  116  U.  S.  517;  Turpin  v.  Burgess,  (1886) 
117  U.  S.  504;  Pittsburg,  etc.,  Coal  Co.  v.  Bates,  (1895)  156  U.  S. 
577;  Pittsburg,  etc.,  Coal  Co.  v.  Louisiana,  (1895)  156  U.  S.  590; 
Scott  v.  Donald,  (1897)  165  U.  S.  58;  Patapsco  Guano  Co.  v.  North 
Carolina  Board  of  Agriculture,  (1898)  171  U.  S.  345;  May  v.  New 
Orleans,  (1900)  178  U.  S.  496;  Dooley  v.  U.  S.,  (1901)  183  U.  S. 
151;  Cornell  v.  Coyne,  (1904)  192  U.  S.  418;  American  Steel,  etc., 
Co.  v.  Speed,  (1904)  192  U.  S.  500. 

"Prior  to  the  adoption  of  the  Constitution  the  States  attempted 
to  regulate  commerce,  and  they  also  levied  duties  on  imports  and 
exports  and  duties  of  tonnage,  and  it  was  the  embarrassments  grow- 
ing out  of  such  regulations  and  conflicting  obligations  which  mainly 
led  to  the  abandonment  of  the  confederation  and  to  the  more  per- 
fect union  under  the  present  Constitution."  State  Tonnage  Tax 
Cases,  (1870)  12  Wall.  (U.  S.)  2L4.  See  also  Brown  v.  Maryland, 
(1827)  12  Wheat.  (U.  S.)  439. 

s  Green  v.  Biddle,  (1823)  8  Wheat.  (U.  S.)  1;  Poole  v.  Fleeger, 
(1837)  11  Pet.  (U.  S.)  185;  Cooley  v.  Board  of  Wardens,  (1851) 
12  How.  (U.  S.)  299;  Peete  v.  Morgan,  (1873)  19  Wall.  (U.  S.) 
581;  Cannon  v.  New  Orleans,  (1874)  20  Wall.  (U.  S.)  577;  Inman 
Steamship  Co.  v.  Tinker,  (1876)  94  U.  S.  238;  Wheeling,  etc.,  Transp. 
Co.  v.  Wheeling,  (1878)  99  U.  S.  273;  Northwestern  Union  Packet 
Co.  v.  St.  Louis,  (1879)  100  U.  S.  423;  Keokuk  Northern  Line 
Packet  Co.  v.  Keokuk,  (1877)  95  U.  S.  80;  Vicksburg  v.  Tobin, 
(1879)  100  U.  S.  430;  Cincinnati,  etc.,  Packet  Co.  v.  Catlettsburg, 

(1881)  105  U.  S.  559;  Wiggins  Ferry  Co.  v.  East  St.  Louis,   (1882) 
107    U.    S.    365;    Parkersburg,    etc.,    Transp.    Co.    v.    Parkersburg, 

(1882)  107  U.   S.   691;   Presser  v.  Illinois,    (1886)    116  U.  S.  252; 
U.  S.  455;  Huse  v.  Glover,   (1886)    119  U.  S.  543;  Ouachita  Packet 
Co.  v.  Aiken,    (1887)    121  U.  S.  444;  Indiana  v.  Kentucky,    (1890) 
136  U.  S.  479;  Virginia  v.  Tennessee,   (1893)   148  U.  S.  503;  Whar- 
ton  v.  Wise,   (1894)   153  U.  S.  155;  St.  Louis,  etc.,  R.  Co.  v.  James, 
(1896)   161  U.  S.  545. 

"Looking  at  the  clause  [in  the  Federal  Constitution]   in  which 


134  CITIZENSHIP 


chapter         32.    A  privilege.    Of  being  presidential  and  vice- 
!  —  presidential  elector  in  the  manner  provided  by  the 
legislation  of  the  State.     (Art.  II,  Sec.  1,  01.  1 


ce-presd 


33.    A  privilege.    Of  being  President  provided 
Residency.  the    c^izen   possesses    the    requisite    qualifications 

of  birth,   age,    and   residence.     (Art.    II,    Sec.    1, 

Cl.  4.)5 

u>H?hbeiUty         34.    A  privilege.    Of  being  Vice-President  sub- 
denec?.resi"    ject  to  the  same  qualifications  as  last  named.     (Art. 

II,  Sec.  1,  Cl.  4.) 

tsheinfgedwai  35.  A  privilege.  Of  suing  in  the  federal  courts, 
on  the  terms  and  subject  to  the  conditions  of  juris- 
diction set  forth  in  the  Constitution  and  laws.  (Art. 

III,  Sees.  1  and  2.) 

right.     To  trial  by  jury  in  the  State  where 
"trial.  the  crime  is  charged  to  have  been  committed  in  any 
trial  for  crime  in  a  federal  court,  except  in  case  of 
impeachment,  and  when  the  crime  is  not  committed 

the  terms  'compact*  or  'agreement'  appear,  it  is  evident  that  the  pro- 
hibition is  directed  to  the  formation  of  any  combination  tending  to 
the  increase  of  political  power  in  the  States,  which  may  encroach 
upon  or  interfere  with  the  just  supremacy  of  the  United  States." 
Virginia  v.  Tennessee,  (1893)  148  U.  S.  519. 

4  Field  v.  Clark,  (1892)  143  U.  S.  649;  Chisholm  v.  Georgia, 
(1793)  2  Dall.  (U.  S.)  419;  Leitensdorfer  v.  Webb,  (1857)  20  How. 
(U.  S.)  176;  Ex  p.  Siebold,  (1879)  100  U.  S.  371;  In  re  Green, 
(1890)  134  U.  S.  377;  McPherson  v.  Blacker,  (1892)  146  U.  S.  1. 

"Congress  is  empowered  to  determine  the  time  of  choosing  the 
electors  and  the  day  on  which  they  are  to  give  their  votes,  which 
is  required  to  be  the  same  day  throughout  the  United  States,  but 
otherwise  the  power  and  jurisdiction  of  the  State  is  exclusive,  with 
the  exception  of  the  provisions  as  to  the  number  of  electors  and  the 
ineligibility  of  certain  persons,  so  framed  that  congressional  and  fed- 
eral influence  might  be  excluded."  McPherson  v.  Blacker,  (1892) 
146  U.  S.  35. 

v.  Sailor's  Snug  Harbour,  (1830)  3  Pet.  (U.  S.)  99. 


CITIZENSHIP  135 


within  any  State  the  trial  to  be  at  such  place  or    chapter 

IV 

places  as  Congress  directs.     (Art.  Ill,  Sec.  2.)6  ' 

eHayburn's  Case,  (1792)  2  Dall.  (U.  S.)  410;  Chisholm  v.  Geor- 
gia, (1793)  2  Dall.  (U.  S.)  419;  Glass  v.  The  Sloop  Betsey,  (1794) 
3  Dall.  (U.  S.)  6;  U.  S.  v.  La  Vengeance,  (1796)  3  Dall.  (U.  S.) 
297;  Hollingsworth  v.  Virginia,  (1798)  3  Dall.  (U.  S.)  378;  Moss- 
man  v.  Higginson,  (1800)  4  Dall.  (U.  S.)  12;  Marbury  v.  Madison, 
(1803)  1  Cranch  (U.  S.)  137;  Hepburn  v.  Ellzey,  (1804)  2  Cranch 
(U.  S.)  445;  U.  S.  v.  More,  (1805)  3  Cranch  (U.  S.)  159;  Straw- 
bridge  v.  Curtiss,  (1806)  3  Cranch  (U.  S.)  267;  Ex  p.  Bollman, 
(1807)  4  Cranch  (U.  S.)  75;  Rose  V.  Himely,  (1808)  4  Cranch 
(U.  S.)  241;  Chappedelaine  v.  Dechenaux,  (1808)  4  Cranch  (U.  S.) 
306;  Hope  Ins.  Co.  v.  Boardman,  (1809)  5  Cranch  (U.  S.)  57;  U.  S. 
Bank  v.  Deveaux,  (1809)  5  Cranch  (U.  S.)  61;  Hodgson  v.  Bower- 
bank,  (1809)  5  Cranch  (U.  S.)  303;  Owings  v.  Norwood,  (1809) 
5  Cranch  (U.  S.)  344;  Durousseau  v.  U.  S.,  (1810)  6  Cranch 
(U.  S.)  307;  U.  S.  v.  Hudson,  (1812)  7  Cranch  (U.  S.)  32;  Martin 
v  Hunter,  (1816)  1  Wheat.  (U.  S.)  304;  Colson  v.  Lewis,  (1817) 
2  Wheat.  (U.  S.)  377;  U.  S.  v.  Bevans,  (1818)  3  Wheat.  (U.  S.) 
336;  Cohen  v.  Virginia,  (1821)  6  Wheat.  (U.  S.)  264;  Ex  p.  Kear- 
ney, (1822)  7  WTheat.  (U.  S.)  38;  Matthews  v.  Zane,  (1822)  7 
Wheat.  (U.  S.)  164;  Osborn  v.  U.  S.  Bank,  (1824)  9  Wheat.  (U.  S.) 
738;  U.  S.  v.  Ortega,  (1826)  11  Wheat.  (U.  S.)  467;  American  Ins. 
Co.  1?.  356  Bales  Cotton,  (1828)  1  Pet.  (U.  S.)  511;  Jackson  v. 
Twentyman,  (1829)  2  Pet.  (U.  S.)  136;  Cherokee  Nation  v.  Georgia, 
(1831)  5  Pet.  (U.  S.)  1;  New  Jersey  v.  New  York,  (1831)  5  Pet. 
(U.  S.)  284;  Davis  v.  Packard,  (1832)  6  Pet.  (U.  S.)  41,  (1833) 
7  Pet.  (U.  S.)  276;  U.  S.  V.  Arredondo,  (1832)  6  Pet.  (U.  S.) 
691;  Breedlove  v.  Nicolet,  (1833)  7  Pet.  (U.  S.)  413;  Brown 
v.  Keene,  (1834)  8  Pet.  (U.  S.)  112;  Davis  v.  Packard, 
(1834)  8  Pet.  (U.  S.)  312;  New  Orleans  V.  De  Armas,  (1835)  9 
Pet.  (U.  S.)  224;  Rhode  Island  V.  Massachusetts,  (1838)  12  Pet. 
(U.  S.)  657;  Augusta  Bank  v.  Earle,  (1839)  13  Pet.  (U.  S.)  519; 
Commercial,  etc.,  Bank  v.  Slocomb,  (1840)  14  Pet.  (U.  S.)  60; 
Suydam  v.  Broadnax,  (1840)  14  Pet.  (U.  S.)  67;  Prigg  v.  Penn- 
sylvania, (1842)  16  Pet.  (U.  S.)  539;  Louisville,  etc.,  R.  Co.  V.  Let- 
son,  (1844)  2  How.  (U.  S.)  497;  Gary  v.  Curtis,  (1845)  3  How. 
(U.  S.)  236;  Waring  V.  Clarke,  (1847)  5  How.  (U.  S.)  441;  Luther 
v.  Borden,  (1849)  7  How.  (U.  S.)  1;  Sheldon  v.  Sill,  (1850)  8  How. 
(U.  S.)  441;  The  Propeller  Genesee  Chief  v.  Fitzhugh,  (1851)  12 
How.  (U.  S.)  443;  Fretz  V.  Bull,  (1851)  12  How.  (U.  S.)  466; 
Neves  v.  Scott,  (1851)  13  How.  (U.  S.)  268;  Pennsylvania  v. 
Wheeling,  etc.,  Bridge  Co.,  (1851)  13  How.  (U.  S.)  518;  Marshall 
v.  Baltimore,  etc.,  R.  Co.,  (1853)  16  How.  (U.  S.)  314;  U.  S.  V. 
Guthrie,  (1854)  17  How.  (U.  S.)  284;  Smith  v.  Maryland,  (1855) 


136  CITIZENSHIP 


Chapter  18  How.  (U.  S.)  71;  Jones  v.  League,  (1855)  18  How.  (U.  S.)  76; 
IV.  Murray  v.  Hoboken  Land,  etc.,  Co.,  (1855)  18  How.  (U.  S.)  272; 

Hyde  v.  Stone,  (1857)  20  How.  (U.  S.)  170;  Irvine  v.  Marshall, 

(1857)  20  How.  (U.  S.)  558;  Fenn  v.  Holme,  (1858)  21  How. 
(U.  S.)  481;  Morewood  v.  Enequist,  (1859)  23  How.  (U.  S.)  491; 
Kentucky  v.  Dennison,  (1860)  24  How.  (U.  S.)  66;  Ohio,  etc.,  R. 
Co.  v.  Wheeler,  (1861)  1  Black  (U.  S.)  286;  The  Steamer  St.  Law- 
rence, (1861)  1  Black  (U.  S.)  522;  The  Propeller  Commerce,  (1861) 
1  Black  (U.  S.)  574;  Ex  p.  Vallandigham,  (1863)  1  Wall.  (U.  S.) 
243;  Ex  p.  Milligan,  (1866)  4  Wall.  (U.  S.)  2;  The  Moses  Taylor, 
(1866)  4  Wall.  (U.  S.)  411;  Mississippi  v.  Johnson,  (1866)  4  Wall. 
(U.  S.)  475;  The  Hine  V.  Trevor,  (1866)  4  Wall.  (U.  S.)  555; 
Philadelphia  v.  Collector,  (1866)  5  Wall.  (U.  S.)  720;  Georgia  v. 
Stanton,  (1867)  6  Wall.  (U.  S.)  50;  Payne  v.  Hook,  (1868)  7  Wall. 
(U.  S.)  425;  The  Alicia,  (1868)  7  Wall.  (U.  S.)  571;  Ex  p.  Yer- 
ger,  (1868)  8  Wall.  (U.  S.)  85;  New  England  Mut.  Marine  Ins. 
Co.  v.  Dunham,  (1870)  11  Wall.  (U.S.)  1 ;  Virginia  v.  West  Virginia, 
(1870)  11  Wall.  (U.  S.)  39;  Susquehanna,  etc.,  Valley  R.,  etc., 
Co.  v.  Blatchford,  (1870)  11  Wall.  (U.  S.)  172;  Chicago,  etc.,  R. 
Co.  V.  Whitton,  (1871)  13  Wall.  (U.  S.)  270;  Tarble's  Case,  (1871) 
13  Wall.  (U.  S.)  397;  Blyew  v.  U.  S.,  (1871)  13  Wall.  (U.  S.) 
581;  Davis  v.  Gray,  (1872)  16  Wall.  (U.  S.)  203;  Sewing  Mach. 
Co.'s  Case,  (1873)  18  Wall.  (U.  S.)  553;  Home  Ins.  Co.  v.  Morse, 
(1874)  20  Wall.  (U.  S.)  445;  Vannevar  v.  Bryant,  (1874)  21  Wall. 
(U.  S.)  41;  The  Lottawanna,  (1874)  21  Wall.  (U.  S.)  558;  Gaines 
V.  Fuentes,  (1875)  92  U.  S.  10;  Claflin  v.  Houseman,  (1876)  93 
U.  S.  130;  Muller  v.  Dows,  (1876)  94  U.  S.  444;  Doyle  v.  Con- 
tinental Ins.  Co.,  (1876)  94  U.  S.  535;  U.  S.  v.  Union  Pac.  R.  Co., 
(1878)  98  U.  S.  569;  Tennessee  v.  Davis,  (1879)  100  U.  S.  257; 
Ex  p.  Boyd,  (1881)  105  U.  S.  647;  Bush  v.  Kentucky,  (1882)  107 
U.  S.  110;  Parkersburg,  etc.,  Transp.  Co.  V.  Parkersburg,  (1882) 
107  U.  S.  691;  Gross  v.  U.  S.  Mortgage  Co.,  (1883)  108  U.  S.  477; 
Chicago,  etc.,  R.  Co.  V.  Wiggins  Ferry  Co.,  (1883)  108  U.  S.  18; 
Louisiana  v.  New  Orleans,  (1883)  108  U.  S.  568;  Ellis  v.  Davis, 
(1883)  109  U.  S.  485;  Carroll  County  v.  Smith,  (1884)  111  U.  S. 
556;  Southern  Pac.  R.  Co.  v.  California,  (1886)  118  U.  S.  109; 
Barron  v.  Burnside,  (1887)  121  U.  S.  186;  Lincoln  County  v.  Lun- 
ing,  (1890)  133  U.  S.  529;  Hans  v.  Louisiana,  (1890)  134  U.  S.  1 ; 
North  Carolina  v.  Temple,  (1890)  134  U.  S.  22;  In  re  Neagle,  (1890) 

135  U.  S.  1;  Nashua,  etc.,  R.  Corp.  v.  Boston,  etc.,  R.  Corp.,   (1890) 

136  U.  S.  356;  Jones  v.  U.  S.,   (1890)    137  U.  S.  202;  Cook  County 
V.  Calumet,  etc.,  Canal,  etc.,  Co.,   (1891)    138  U.  S.  635;  Manchester 
v.  Massachusetts,   (1891)    139  U.  S.  240;  In  re  Garnett,   (1891)    141 
U.  S.  1;  U.  S.  v.  Texas,    (1892)    143  U.  S.  621;   Southern  Pac.  R. 
Co.  V.  Denton,    (1892)    146  U.  S.  202;  Cooke  v.  Avery,    (1893)    147 
U.  S.  375;  Gates  V.  Allen,   (1893)    149  U.  S.  451;  McNulty  v.  Cali- 


CITIZENSHIP  137 


fornia,  (1893)  149  U.  S.  645;  In  re  Tyler,  (1893)  149  U.  S.  164; 
Newport  Light  Co.  17.  Newport,  (1894)  151  U.  S.  527;  New  York, 
etc.,  R.  Co.  v.  Bristol,  (1894)  151  U.  S.  556;  Israel  v.  Arthur, 
(1894)  152  U.  S.  355;  Michigan  v.  Flint,  etc.,  R.  Co.,  (1894)  152 
U.  S.  363;  New  Orleans  v.  Benjamin,  (1894)  153  U.  S.  411;  Mobile, 
etc.,  R.  Co.  v.  Tennessee,  (1894)  153  U.  S.  486;  Reagan  v.  Farmers' 
L.  &  T.  Co.,  (1894)  154  U.  S.  362;  Interstate  Commerce  Commis- 
sion v.  Brimson,  (1894)  154  U.  S.  447;  Plumley  v.  Massachusetts, 
(1894)  155  U.  S.  461;  Andrews  v.  Swartz,  (1895)  156  U.  S.  272; 
St.  Louis,  etc.,  R.  Co.  v.  Gill,  (1895)  156  U.  S.  649;  Stevens  v. 
Nichols,  (1895)  157  U.  S.  370;  In  re  Debs,  (1895)  158  U.  S.  564; 
Central  Land  Co.  v.  Laidley,  (1895)  159  U.  S.  103;  Folsom  v.  Town- 
ship Ninety-Six,  (1895)  159  U.  S.  611;  Laing  v.  Rigney,  (1896)  160 
U.  S.  531;  St.  Louis,  etc.,  R.  Co.  t?.  James,  (1896)  161  U.  S.  545; 
Woodruff  v.  Mississippi,  (1896)  162  U.  S.  291;  Fallbrook  Irrigation 
Dist.  V.  Bradley,  (1896)  164  U.  S.  112;  Scott  v.  Donald,  (1897) 

165  U.  S.  107;  Robertson  v.  Baldwin,  (1897)   165  U.  S.  275;  Chicago, 
etc.,  R.  Co.  v.  Chicago,   (1897)   166  U.  S.  226;  Forsyth  v.  Hammond, 
(1897)    166  U.  S.  506;   Oxley  Stave  Co.  v.  Butler  County,    (1897) 

166  U.  S.  648;  In  re  Lennon,   (1897)   166  U.  S.  548;  City  R.  Co.  v. 
Citizens'  St.  R.  Co.,    (1897)    166  U.  S.  557;  Douglas  v.  Kentucky, 
(1897)   168  U.  S.  488;  Miller  v.  Cornwall  R.  Co.,   (1897)    168  U.  S. 
131;  Baker  v.  Grice,   (1898)   169  U.  S.  284;  Smyth  v.  Ames,   (1898) 
169  U.   S.  466;    Backus  v.   Fort  St.  Union  Depot  Co.,    (1898)    169 
U.  S.  557;  Tinsley  v.  Anderson,   (1898)   171  U.  S.  101;  Walla  Walla 
tf.  Walla  Walla  Water  Co.,    (1898)    172  U.  S.   1;   Green  Bay,  etc., 
Canal  Co.  v.  Patten  Paper  Co.,  (1898)   172  U.  S.  58;  Meyer  v.  Rich- 
mond,   (1898)    172  U.   S.   82;  McCullough  v.  Virginia,    (1898)    172 
U.  S.  102;  Fitts  v.  McGhee,    (1899)    172  U.  S.  516;  Dewey  v.  Des 
Moines,    (1899)    173  U.  S.  193;  Nicol  v.  Ames,    (1899)    173  U.  S. 
509;  Covington  v.  Kentucky,  (1899)   173  U.  S.  231;  La  Abra  Silver 
Min.  Co.  t?.  U.  S.,  (1899)   175  U.  S.  423;  Louisiana  v.  Texas,   (1900) 
176  U.  S.  1;  Whitman  v.  Oxford  Nat.  Bank,   (1900)    176  U.  S.  559; 
Hancock  Nat.   Bank  v.  Farnum,    (1900)    176  U.   S.   640;   Carter  v. 
Texas,    (1900)    177  U.  S.  442;   Smith  v.  Reeves,    (1900)    178  U.  S. 
436;  Western  Union  Tel.  Co.  v.  Ann  Arbor  R.  Co.,  (1900)   178  U.  S. 
239;   Wiley  v.   Sinkler,    (1900)    179  U.  S.  58;  Missouri  v.  Illinois, 
(1901)   180  U.  S.  208;  Eastern  Bldg.,  etc.,  Assoc.  v.  Welling,  (1901) 
181  U.  S.  47;   Dooley  v.  U.  S.,    (1901)    182  U.  S.  222;   Tullock  v. 
Mulvane,   (1902)   184  U.  S.  497;  Patton  v.  Brady,   (1902)    184  U.  S. 
608;  Kansas  v.  Colorado,    (1902)    185  U.  S.  125;   Swafford  v.  Tern- 
pleton,  (1902)   185  U.  S.  487;  Mobile  Transp.  Co.  v.  Mobile,    (1903) 

187  U.  S.  479;  Andrews  v.  Andrews,  (1903)   188  U.  S.  14;  Hooker  V 
Los  Angeles,    (1903)    188  U.  S.  314;   Cummings  v.  Chicago,    (1903) 

188  U.   S.  410;    Schaefer  v.  Werling,    (1903)    188  U.    S.   516;    The 
Roanoke,    (1903)    189  U.   S.   185;   Detroit,  etc.,  R.  Co.   v.  Osborn, 


138  CITIZENSHIP 


Chapter         37,    £&  immunity.    From  the  charge  of  treason 
against  the  United  States,  except  for  levying  war 


Treason,  against  them,  or  for  adhering  to  their  enemies,  giv- 
ing them  aid  and  comfort.  (Art.  Ill,  Sec.  3,  Cl.  1. 
See  Of  Treason,  supra,  pp.  74  et  seq.) 

?fvi?reenacson.  38.  A  right.  To  demand,  in  cases  of  trial  for 
treason,  the  testimony  of  two  witnesses  to  the  same 
overt  act,  or  a  confession  in  open  court,  as  the  only 
basis  of  conviction.  (Art.  Ill,  Sec.  3,  Cl.  I.)7 

Attainder.         39.    An  immunity.    Against  any  attainder   of 

(1903)  189  U.  S.  383;  Patterson  v.  Bark  Eudora,  (1903)  190  U.  S. 
169;  Howard  v.  Fleming,  (1903)    191  U.  S.  126;  Arbuckle  v.  Black- 
burn, (1903)  191  U.  S.  405;  Deposit  Bank  v.  Frankfort,  (1903)  191 
U.  S.  499;  Spencer  v.  Duplan  Silk  Co.,   (1903)    191  U.  S.  526;  Wa- 
bash  R.  Co.  v.  Pearce,   (1904)    192  U.  S.  179;  Rogers  V.  Alabama, 

(1904)  192  U.  S.  226;  South  Dakota  v.  North  Carolina,  (1904)   192 
U.  S.  286;  Bankers  Mut.  Casualty  Co.  v.  Minneapolis,  etc.,  R.  Co., 
(1904)    192  U.  S.  371;   Spreckels  Sugar  Refining  Co.  V.  McClain, 
(1904)   192  U.  S.  397. 

7U.  S.  v.  Insurgents,  (1795)  2  Dall.  (U.  S.)  335;  U.  S.  17.  Mitch- 
ell, (1795)  2  Dall.  (U.  S.)  348;  Ex  p.  Bollman,  (1807)  4  Cranch 
(U.  S.)  75;  Burr's  Trial,  4  Cranch  (U.  S.)  469. 

"  To  prevent  the  possibility  of  those  calamities  which  result  from 
the  extension  of  treason  to  offenses  of  minor  importance,  that  great 
fundamental  law  which  defines  and  limits  the  various  departments 
of  our  government  has  given  a  rule  on  the  subject  both  to  the  legis- 
lature and  the  courts  of  America,  which  neither  can  be  permitted 
to  transcend.  '  Treason  against  the  United  States  shall  consist  only 
in  levying  war  against  them,  or  in  adhering  to  their  enemies,  giving 
them  aid  and  comfort.' "  Per  Mr.  Chief  Justice  Marshall,  in  Ex  p. 
Bollman,  (1807)  4  Cranch  (U.  S.)  126.  See  also  U.  S.  v.  Hoxie, 
(1808)  1  Paine  (U.  S.)  265. 

"In  the  earlier  periods  of  English  history,  the  judges  were  often 
the  pliant  tools  of  the  king,  and  exercised  the  power  of  punishing 
for  constructive  treasons,  under  circumstances  the  most  revolting 
and  greatly  to  the  oppression  of  innocent  persons.  The  wise  and 
sagacious  framers  of  our  Constitution  have  effectually  guarded 
against  such  abuses  of  power,  by  declaring  there  shall  be  no  convic- 
tion for  this  high  crime  on  mere  suspicion  or  on  proof  of  any  fact 
which  is  not  an  overt  act  of  treason  established  by  two  witnesses." 
Charge  to  Grand  Jury,  (1861)  1  Bond  (U.  S.)  610. 


CITIZENSHIP  139 


treason  working  corruption  of  blood  or  forfeiture,    chapter 
except  during  the  life  of  the  person  attainted.     (Art.          ' 
III,  Sec.  3,  01.  2.)8 

40.  A  right.  To  demand  that  each  State  shall 
give  full  faith  and  credit  to  the  public  acts,  records, 
and  judicial  proceedings  of  every  other  State. 
(Art.  IV,  Sec.  I.)9 

sBigelow  v.  Forrest,  (1869)  9  Wall.  (U.  S.)  339;  Day  v.  Micou, 
(1873)  18  Wall.  (U.  S.)  156;  Ex  p.  Lange,  (1873)  18  Wall.  (U.  S.) 
163;  Wallach  v.  Van  Riswick,  (1875)  92  U.  S.  202;  U.  S.  v.  Dun- 
aington,  (1892)  146  U.  S.  338. 

"What  was  intended  by  the  constitutional  provision  is  free  from 
doubt.  In  England,  attainders  of  treason  worked  corruption  of  blood 
and  perpetual  forfeiture  of  the  estate  of  the  person  attainted,  to  the 
disinherison  of  his  heirs,  or  of  those  who  would  otherwise  be  his 
heirs.  Thus  innocent  children  were  made  to  suffer  because  of  the 
offense  of  their  ancestor.  When  the  Federal  Constitution  was 
framed,  this  was  felt  to  be  a  great  hardship,  and  even  rank  injus- 
tice. For  this  reason,  it  was  ordained  that  no  attainder  of  treason 
should  work  corruption  of  blood  or  forfeiture,  except  during  the 
life  of  the  person  attainted."  Wallach  v.  Van  Riswick,  (1875)  92 
U.  S.  210. 

» Mills  17.  Duryee,  (1813)  7  Cranch  (U.  S.)  481;  Hampton  v. 
M'Connel,  (1818)  3  Wheat.  (U.  S.)  234;  Mayhew  v.  Thatcher, 
(1821)  6  Wheat.  (U.  S.)  129;  Darby  v.  Mayer,  (1825)  10  Wheat. 
(U.  S.)  465;  U.  S.  v.  Amedy,  (1826)  11  Wheat.  (U.  S.)  392;  Cald- 
well  v.  Carrington,  (1835)  9  Pet.  (U.  S.)  86;  M'Elmoyle  v.  Cohen, 
(1839)  13  Pet.  (U.  S.)  312;  Augusta  Bank  v.  Earle,  (1839)  13  Pet. 
(U.  S.)  519;  Alabama  State  Bank  v.  Dalton,  (1850)  9  How. 
(U.  S.)  522;  D'Arcy  V.  Ketchum,  (1850)  11  How.  (U.  S.)  165; 
Christmas  v.  Russell,  (1866)  5  Wall.  (U.  S.)  290;  Green  v.  Van 
Buskirk,  (1868)  7  Wall.  (U.  S.)  139;  Paul  v.  Virginia,  (1868)  8 
Wall.  (U.  S.)  168;  Board  of  Public  Works  v.  Columbia  College, 
(1873)  17  Wall.  (U.  S.)  521;  Thompson  v.  Whitman,  (1873)  18 
Wall.  (U.  S.)  457;  Pennoyer  V.  Neff,  (1877)  95  U.  S.  714;  Bona- 
parte t).  Appeal  Tax  Ct.,  (1882)  104  U.  S.  592;  Robertson  v.  Pick- 
rell,  (1883)  109  U.  S.  608;  Brown  V.  Houston,  (1885)  114  U.  S. 
622;  Hanley  V.  Donoghue,  (1885)  116  U.  S.  1;  Renaud  v.  Abbott, 

(1886)  116  U.  S.  277;  Chicago,  etc.,  R.  Co.  v.  Wiggins  Ferry  Co., 

(1887)  119  U.  S.  615;   Borer  v.  Chapman,    (1887)    119  U.  S.  587; 
Cole   v.   Cunningham,    (1890)     133   U.    S.    107;    Blount   V.    Walker, 
(1890)    134  U.   S.   607;   Simmons  V.   Saul,    (1891)    138  U.    S.   439; 
Reynolds  v.  Stockton,   (1891)    140  U.  S.  254;  Carpenter  v.  Strange, 


140 


CITIZENSHIP 


Chapter 
IV. 


41.    A  right    In  the  citizens  of  each  State  to  en- 
joy all  the  privileges  and  immunities  of  citizens  in 


universal    the  several  States.     (Art  IV,  Sec.  2,  01.  I.)1 


privileges. 


(1891)  141  U.  S.  87;  Huntington  v.  Attrill,  (1892)  146  U.  S.  657; 
Glenn  v.  Garth,  (1893)  147  U.  S.  360;  Laing  v.  Rigney,  (1896)  160 
U.  S.  531;  Chicago,  etc.,  R.  Co.  v.  Sturm,  (1899)  174  U.  S.  710; 
Thormann  v.  Frame,  (1900)  176  U.  S.  350;  Hancock  Nat.  Bank  «. 
Farnum,  (1900)  176  U.  S.  640;  Clarke  v.  Clarke,  (1900)  178  U.  S. 
186;  Wilkes  County  v.  Coler,  (1901)  180  U.  S.  506;  W.  W.  Cargill 
Co.  v.  Minnesota,  (1901)  180  U.  S.  452;  Johnson  v.  New  York  L. 
Ins.  Co.,  (1903)  187  U.  S.  491;  Andrews  v.  Andrews,  (1903)  188 
U.  S.  14;  Blackstone  v.  Miller,  (1903)  188  U.  S.  189;  Finney  v.  Guy, 

(1903)  189  U.  S.  335;  Wabash  R.  Co.  v.  Flannigan,  (1904)  192 
U.  S.  29;  German  Sav.,  etc.,  Soc.  v.  Dormitzer,  (1904)  192  U.  S. 
125;  Wedding  v.  Meyler,  (1904)  192  U.  S.  573. 

iU.  S.  Bank  v.  Deveaux,  (1809)  5  Cranch  (U.  S.)  61;  Gassies 
V.  Ballon,  (1832)  6  Pet.  (U.  S.)  761;  Rhode  Island  v.  Massachu- 
setts, (1838)  12  Pet.  (U.  S.)  657;  Augusta  Bank  V.  Earle,  (1839) 
13  Pet.  (U.  S.)  519;  Moore  V.  Illinois,  (1852)  14  How.  (U.  S.) 
13;  Conner  v.  Elliott,  (1855)  18  How.  (U.  S.)  591;  Dred  Scott  v. 
Sandford,  (1856)  19  How.  (U.  S.)  393;  Crandall  v.  Nevada,  (1867) 
6  Wall.  (U.  S.)  35;  Woodruff  v.  Parham,  (1868)  8  Wall.  (U.  S.) 
123;  Paul  V.  Virginia,  (1868)  8  Wall.  (U.  S.)  168;  Downham  V. 
Alexandria,  (1869)  10  Wall.  (U.  S.)  173;  Liverpool  Ins.  Co.  «?. 
Massachusetts,  (1870)  10  Wall.  (U.  S.)  566;  Ward  v.  Maryland, 
(1870)  12  Wall.  (U.  S.)  418;  Slaughter-House  Cases,  (1872)  16 
Wall.  (U.  S.)  36;  Bradwell  v.  State,  (1872)  16  Wall.  (U.  S.)  130; 
Chemung  Canal  Bank  v.  Lowery,  (1876)  93  U.  S.  72;  McCready  v. 
Virginia,  (1876)  94  U.  S.  391;  Philadelphia  Fire  Assoc.  v.  New 
York,  (1886)  119  U.  S.  110;  Pembina  Consol.  Silver  Min.,  etc.,  Co. 
V.  Pennsylvania,  (1888)  125  U.  S.  181;  Kimmish  v.  Ball,  (1889) 
129  U.  S.  217;  Cole  V.  Cunningham,  (1890)  133  U.  S.  107;  Man- 
chester v.  Massachusetts,  (1891)  139  U.  S.  240;  Pittsburg,  etc.,  Coal 
Co.  v.  Bates,  (1895)  156  U.  S.  577;  Vance  V.  W.  A.  Vandercook  Co., 
(1898)  170  U.  S.  438;  Blake  v.  McClung,  (1898)  172  U.  S.  239; 
Williams  v.  Fears,  (1900)  179  U.  S.  270;  Travellers'  Ins.  Co.  v. 
Connecticut,  (1902)  185  U.  S.  364;  Chadwick  v.  Kelley,  (1903)  187 
U.  S.  540;  Diamond  Glue  Co.  v.  U.  S.  Glue  Co.,  (1903)  187  U.  S. 
611;  Blackstone  v.  Miller,  (1903)  188  U.  S.  189;  Anglo-American 
Provision  Co.  v.  Davis  Provision  Co.,  (1903)  191  U.  S.  373. 

"The  Constitution  of  the  United  States  declares  that  the  citizens 
of  each  State  shall  be  entitled  to  all  the  privileges  and  immunities 
of  citizens  in  the  several  States.  And  although  these  privileges  and 
immunities,  for  greater  safety,  are  placed  under  the  guardianship 


CITIZENSHIP 


onto 


42.  A  right.     To  demand  from  any  State  the    Chapter 
extradition  and  removal  of  any  person  who  shall  flee       IV' 
thereto,   who   is   charged,   in   another   State,   with  J?**ra$' 
treason,  felony,  or  other  crime.     (Art.  IV,  Sec.  2,  criminals- 
01.  2).2 

43.  A  right.     To  demand  the  delivery,  on  claim 

of  the  party  entitled,  of  any  person  held  to  service  heidc 
or  labor,  in  one  State,  who  has  escaped  to  another 
State.     (Art.  IV,  Sec.  2,  01.  3.)3 

44.  A  right.     To  the  performance  of  the  guar- 
antee of  the  United  States  that  every  State  in  the 
Union  shall  have  a  republican  form  of  government, 
and  that  the  United  States  will  protect  each  of  them 
from  invasion  and  against  domestic  violence.     (Art. 
IV,  Sec.  4.)4 

of  the  general  government,  still  the  States  may  by  their  laws  and 
in  their  tribunals  protect  and  enforce  them.  They  have  not  only 
the  power,  but  it  is  a  duty  enjoined  upon  them  by  this  provision  in 
the  Constitution."  Per  Mr.  Justice  Taney,  in  Prigg  v.  Pennsylvania, 
(1842)  16  Pet.  (U.  S.)  629. 

2 Holmes  v.  Jennison,  (1840)  14  Pet.  (U.  S.)  540;  Kentucky  V. 
Dennison,  (1860)  24  How.  (U.  S.)  66;  Taylor  v.  Taintor,  (1872) 
16  Wall.  (U.  S.)  366;  Carroll  County  v.  Smith,  (1884)  111  U.  S. 
556;  Ex  p.  Reggel,  (1885)  114  U.  S.  642;  Mahon  v.  Justice,  (1888) 
127  U.  S.  700;  Lascelles  v.  Georgia,  (1893)  148  U.  S.  537;  Utter  V. 
Franklin,  (1899)  172  U.  S.  416. 

s  Prigg  v.  Pennsylvania,  (1842)  16  Pet.  (U.  S.)  539;  Jones  v. 
Van  Zandt,  (1847)  5  How.  (U.  S.)  215;  Strader  v.  Graham,  (1850) 
10  How.  (U.  S.)  82;  Moore  v.  Illinois,  (1852)  14  How.  (U.  S.)  13; 
Dred  Scott  v.  Sandford,  (1856)  19  How.  (U.  S.)  393;  Ableman  V. 
Booth,  (1858)  21  How.  (U.  S.)  506. 

"Every  State  has  an  undoubted  right  to  determine  the  status,  or 
domestic  and  social  condition,  of  the  persons  domiciled  within  its 
territory;  except  in  so  far  as  the  powers  of  the  States  in  this  re- 
spect are  restrained,  or  duties  and  obligations  imposed  upon  them, 
by  the  Constitution  of  the  United  States."  Strader  v.  Graham, 
(1850)  10  How.  (U.  S.)  93. 

*  Luther  v.  Borden,  (1849)  7  How.  (U.  S.)  1;  Texas  v.  White, 
(1868)  7  Wall.  (U.  S.)  700;  In  re  Duncan,  (1891)  139  U.  S.  449; 
Taylor  v.  Beckham,  (1900)  178  U.  S.  548. 


142  CITIZENSHIP 


45.  A  right.  In  each  State  to  equal  suffrage  in 
the  Senate.  (Art.  V.) 

£quthety  These  being  the  only  rights,  privileges,  and  im- 

munities guaranteed  to  citizens  by  the  Constitution 
itself,  the  following  additional  appear  in  the  first 
twelve  amendments  to  the  Constitution : B 

?/ credi?Son         ^6.    An  immunity.    Against  any  law  of  Congress 

and  S0pfeethe  respecting  an  establishment  of  religion,  or  prohibit- 
ing the  free  exercise  thereof,  or  abridging  the  free- 
dom of  speech  or  of  the  press.  (Art.  I.)6 

fnT^et1?  47.  A  right.  Of  the  people  peaceably  to  assem- 
ble, and  to  petition  the  government  for  a  redress  of 
grievances.  (Art.  I.)7 

5  "It  was  one  of  the  objections  most  seriously  urged  against  the 
new  Constitution  by  those  who  opposed  its  ratification  by  the 
States,  that  it  contained  no  formal  Bill  of  Rights.  (Federalist,  No. 
Ixxxiv.)  And  the  State  of  Virginia  accompanied  her  ratification  by 
the  recommendation  of  an  amendment  embodying  such  a  bill.  ( 3  El- 
liot's Debates,  661.)  The  feeling  on  this  subject  led  to  the  adoption 
of  the  first  ten  amendments  to  that  instrument  at  one  time,  shortly 
after  the  government  was  organized.  These  are  all  designed  to 
operate  as  restraints  on  the  general  government,  and  most  of  them 
for  the  protection  of  private  rights  of  persons  and  property.  Not- 
withstanding this  reproach,  however,  there  are  many  provisions  in 
the  original  instrument  of  this  latter  character."  Kring  v.  Missouri, 
(1882)  107  U.  S.  226. 

eTerrett  v.  Taylor,  (1815)  9  Cranch  (U.  S.)  43;  Vidal  v.  Phila- 
delphia, (1844)  2  How.  (U.  S.)  127;  Ex  p.  Garland,  (1866)  4 
Wall.  (U.  S.)  333;  U.  S.  v.  Cruikshank,  (1875)  92  U.  S.  542;  Rey- 
nolds 17.  U.  S.,  (1878)  98  U.  S.  145;  Spies  v.  Illinois,  (1887)  123 
U.  S.  131;  Davis  V.  Beason,  (1890)  133  U.  S.  333;  Eilenbecker  v. 
Plymouth  County,  (1890)  134  U.  S.  31;  Church  of  Jesus  Christ  V. 
U.  S.,  (1890)  136  U.  S.  1;  In  re  Rapier,  (1892)  143  U.  S.  110; 
Homer  v.  U.  S.,  (1892)  143  U.  S.  207;  Bradfield  v.  Roberts,  (1899) 
175  U.  S.  291. 

7  "  The  right  of  the  people  peaceably  to  assemble  for  the  purpose 
of  petitioning  Congress  for  a  redress  of  grievances,  or  for  any  thing 
else  connected  with  the  powers  or  the  duties  of  the  national  govern- 
ment, is  an  attribute  of  national  citizenship,  and,  as  such,  under 


CITIZENSHIP  143 


48.    A  right.    Of  the  people  to  keep  and  bear    chapter 
arms.    A  right  not  to  be  infringed.     (Art.  II.)8 


49.  An    immunity.    From    the    quartering    of 
troops  in  any  house  in  time  of  peace  without  the  Quarter. 
consent  of  the  owner,  or  in  time  of  war,  except  in  a  1] 
manner  to  be  prescribed  by  law.     (Art.  III.) 

50.  An      immunity.      Against      unreasonable 
searches  or  seizures.     (Art.  IV.)9 

51.  A  right.     To  demand  that  search  warrants 
shall  not  issue  except  upon  probable  cause,  sup- 
ported by  oath  or  affirmation  and  particularly  de- 

the  protection  of,  and  guaranteed  by,  the  United  States.  The  very 
idea  of  a  government,  republican  in  form,  implies  a  right  on  the  part 
of  its  citizens  to  meet  peaceably  for  consultation  in  respect  to  public 
affairs  and  to  petition  for  a  redress  of  grievances."  U.  S.  V.  Cruik- 
shank,  (1875)  92  U.  S.  552. 

spresser  v.  Illinois,  (1886)  116  U.  S.  252;  Spies  V.  Illinois, 
(1887)  123  U.  S.  131;  Eilenbecker  v.  Plymouth  County,  (1890)  134 
U.  S.  31. 

"This  is  not  a  right  granted  by  the  Constitution.  Neither  is  it 
in  any  manner  dependent  upon  that  instrument  for  its  existence. 
The  Second  Amendment  declares  that  it  shall  not  be  infringed;  but 
this,  as  has  been  seen,  means  no  more  than  that  it  shall  not  be 
infringed  by  Congress.  This  is  one  of  the  amendments  that  has  no 
other  effect  than  to  restrict  the  powers  of  the  national  government, 
leaving  the  people  to  look  for  their  protection  against  any  violation 
by  their  fellow-citizens  of  the  rights  it  recognizes,  to  what  is  called, 
in  The  City  of  New  York  v.  Miln,  (1837)  11  Pet.  (U.  S.)  139,  the 
'powers  which  relate  to  merely  municipal  legislation,  or  what  was, 
perhaps,  more  properly  called  internal  police/  'not  surrendered  or 
restrained'  by  the  Constitution  of  the  United  States."  U.  S.  V. 
Cruikshank,  (1875)  92  U.  S.  553. 

»  Smith  v.  Maryland,  (1855)  18  How.  (U.  S.)  71;  Murray  v.  Ho- 
boken  Land,  etc.,  Co.,  (1855)  18  How.  (U.  S.)  272;  Ex  p.  Milligan, 
(1866)  4  Wall.  (U.  S.)  2;  Boyd  v.  U.  S.,  (1886)  116  U.  S.  616; 
Spies  17.  Illinois,  (1887)  123  U.  S.  131;  Eilenbecker  v.  Plymouth 
County,  (1890)  134  U.  S.  31;  Fong  Yue  Ting  v.  U.  S.,  (1893)  149 
U.  S.  698;  Interstate  Commerce  Commission  v.  Brimson,  (1894) 
154  U.  S.  447;  In  re  Chapman,  (1897)  166  U.  S.  661;  Adams  v. 
New  York,  (1904)  192  U.  S.  585. 


144 


CITIZENSHIP 


Chapter 
IV. 

Grand 
jury. 


scribing  the  place  to  be  searched,  and  the  person  or 
things  to  be  seized.     (Art.  IV.)1 

52.  A  right.  That  no  citizen  be  held  to  answer 
to  the  Federal  government  for  a  capital  or  otherwise 
infamous  crime,  unless  on  a  presentment  or  indict- 
ment of  a  grand  jury,  except  in  cases  arising  in  the 
land  or  naval  forces,  or  in  the  militia,  when  in  actual 
service.  (Art.  V.)2 

i "  The  security  intended  to  be  guaranteed  by  the  Fourth  Amend- 
ment against  wrongful  search  and  seizures  is  designed  to  prevent 
violations  of  private  security  in  person  and  property  and  unlawful 
invasion  of  the  sanctity  of  the  home  of  the  citizen  by  officers  of 
the  law,  acting  under  legislative  or  judicial  sanction,  and  to  give 
remedy  against  such  usurpations  when  attempted.  But  the  English 
and  nearly  all  of  the  American  cases  have  declined  to  extend  this 
doctrine  to  the  extent  of  excluding  testimony  which  has  been  ob- 
tained by  such  means,  if  it  is  otherwise  competent."  Adams  v.  New 
York,  (1904)  192  U.  S.  598. 

2U.  S.  v.  Perez,  (1824)  9  Wheat.  (U.  S.)  579;  Barren  V.  Balti- 
more, (1833)  7  Pet.  (U.  S.)  243;  Fox  v.  Ohio,  (1847)  5  How. 
(U.  S.)  410;  West  River  Bridge  Co.  v.  Dix,  (1848)  6  How.  (U.  S.) 
507;  Mitchell  v.  Harmony,  (1851)  13  How.  (U.  S.)  115;  Moore  v. 
Illinois,  (1852)  14  How.  (U.  S.)  13;  Murray  v.  Hoboken  Land,  etc., 
Co.,  (1855)  18  How.  (U.  S.)  272;  Dynes  v.  Hoover,  (1857)  20 
How.  (U.  S.)  65;  Withers  v.  Buckley,  (1857)  20  How.  (U.  S.) 
84;  Oilman  v.  Sheboygan,  (1862)  2  Black  (U.  S.)  510;  Ex  p.  Milli- 
gan,  (1866)  4  Wall.  (U.  S.)  2;  Twitchell  v.  Pennsylvania,  (1868) 
7  Wall.  (U.  S.)  321;  Hepburn  v.  Griswold,  (1869)  8  Wall.  (U.  S.) 
603;  Miller  v.  U.  S.,  (1870)  11  Wall.  (U.  S.)  268;  Legal  Tender 
Cases,  (1870)  12  Wall.  (U.  S.)  457;  Pumpelly  v.  Green  Bay,  etc., 
Canal  Co.,  (1871)  13  Wall.  (U.  S.)  166;  Osborn  v.  Nicholson, 
(1871)  13  Wall.  (U.  S.)  654;  Ex  p.  Lange,  (1873)  18  Wall.  (U.  S.) 
163;  Kohl  v.  U.  S.,  (1875)  91  U.  S.  367;  Davidson  v.  New  Orleans, 
(1877)  96  U.  S.  97;  Sinking  Fund  Cases,  (1878)  99  U.  S.  700; 
Langford  v.  U.  S.,  (1879)  101  U.  S.  341;  Kelly  v.  Pittsburgh, 
(1881)  104  U.  S.  78;  Ex  p.  Wall,  (1882)  107  U.  S.  265;  U.  S.  v. 
Jones,  (1883)  109  U.  S.  513;  U.  S.  v.  Great  Falls  Mfg.  Co.,  (1884) 
112  U.  S.  645;  Ex  p.  Wilson,  (1885)  114  U.  S.  417;  Boyd  v.  U.  S., 
(1886)  116  U.  S.  616;  Mackin  v.  U.  S.,  (1886)  117  U.  S.  348;  Ex  p. 
Bain,  (1887)  121  U.  S.  1;  Parkinson  v.  U.  S.,  (1887)  121  U.  S. 
281;  Spies  v.  Illinois,  (1887)  123  U.  S.  131;  Callan  v.  Wilson, 
(1888)  127  U.  S.  540;  U.  S.  v.  De  Walt,  (1888)  128  U.  S.  393; 


CITIZENSHIP  145 


53.    An  immunity.    From  being  twice  put   in    chapter 
jeopardy  of  life  or  limb  for  the  same  offense.     (Art.  ! — 


T7  \3  Former 

*  */  jeopardy. 


54.  An     immunity.    From     being     a     witness 
against  himself.     (Art.  V.)4  tion- 

55.  A  right.     To  due  process  of  law  before  being 


deprived  of  life,  liberty,  or  property.     (Art.  V.)5 


56.  A   right.     To   just   compensation   for   any 
property  taken  for  public  use.     (Art.  V.)6  SET7 

57.  A  right.     To  speedy  and  public  trial  in  all 
cases  of  criminal  prosecutions  by  an  impartial  jury 


accused 
crime. 


Manning  v.  French,  (1890)  133  U.  S.  186;  Eilenbecker  v.  Plymouth 
County,  (1890)  134  U.  S.  31;  Louisville,  etc.,  R.  Co.  v.  Woodson, 
(1890)  134  U.  S.  614;  In  re  Ross,  (1891)  140  U.  S.  453;  Counsel- 
man  v.  Hitchcock,  (1892)  142  U.  S.  547;  Simmons  v.  U.  S.,  (1891) 
142  U.  S.  148;  Thorington  v.  Montgomery,  (1893)  147  U.  S.  490; 
Monongahela  Nav.  Co.  v.  U.  S.,  (1893)  148  U.  S.  312;  Fong  Yue 
Ting  v.  U.  S.,  (1893)  149  U.  S.  698;  Lees  v.  U.  S.,  (1893)  150  U.  S. 
476;  Marchant  v.  Pennsylvania  R.  Co.,  (1894)  153  U.  S.  380;  Lin- 
ford  v.  Ellison,  (1894)  155  U.  S.  503;  Johnson  v.  Sayre,  (1895)  158 
U.  S.  109;  Sweet  v.  Rechel,  (1895)  159  U.  S.  380;  Brown  v.  Walker, 
(1896)  161  U.  S.  591;  Wong  Wing  v.  U.  S.,  (1896)  163  U.  S.  228; 
Talton  v.  Mayes,  (1896)  163  U.  S.  376;  Bauman  v.  Ross,  (1897) 
167  U.  S.  548;  Wilson  v.  Lambert,  (1898)  168  U.  S.  611;  U.  S.  V. 
Joint  Traffic  Assoc.,  (1898)  171  U.  S.  505;  Maxwell  v.  Dow,  (1900) 
176  U.  S.  581;  Scranton  v.  Wheeler,  (1900)  179  U.  S.  141;  Mc- 
Donald V.  Massachusetts,  (1901)  180  U.  S.  311;  Neely  v.  Henkel, 
(1901)  180  U.  S.  109;  French  v.  Barber  Asphalt  Paving  Co.,  (1901) 
181  U.  S.  324;  Wight  v.  Davidson,  (1901)  181  U.  S.  371;  Tona- 
wanda  v.  Lyon,  (1901)  181  U.  S.  389;  Capital  City  Dairy  Co.  v. 
Ohio,  (1902)  183  U.  S.  238;  Hanover  Nat.  Bank  v.  Moyses,  (1902) 
186  U.  S.  181;  Dreyer  v.  Illinois,  (1902)  187  U.  S.  71;  Lone  Wolf 
v.  Hitchcock,  (1903)  187  U.  S.  553;  U.  S.  v.  Lynah,  (1903)  188 
U.  S.  445;  Japanese  Immigrant  Case,  (1903)  189  U.  S.  86;  Hawaii 
V.  Mankichi,  (1903)  190  U.  S.  197;  Bedford  v.  U.  S.,  (1904)  192 
U.  S.  217;  Buttfield  v.  Stranahan,  (1904)  192  U.  S.  470;  Adams  v. 
New  York,  (1904)  192  U.  S.  585. 

3  See  cases  cited  in  note  2,  supra. 

*  See  cases  cited  in  note  2,  supra. 

B  See  cases  cited  in  note  2,  supra. 

6  See  cases  cited  in  note  2,  supra. 
10 


CITIZENSHIP 


Chapter    of  the  district  wherein  any  crime  is  charged  to  have 

TV 

'  been  committed,  the  district  to  have  been  previously 
ascertained  by  law ;  to  be  informed  of  the  nature  and 
cause  of  the  accusation;  to  be  confronted  with  the 
witnesses  against  him;  to  have  compulsory  process 
for  obtaining  witnesses  in  his  favor ;  and  to  have  the 
assistance  of  counsel  for  his  defense.  (Art.  VI.)7 
chSescases.  ^  ^-  r^n^  ^n  suits  at  common  law,  involving 
a  value  exceeding  twenty  dollars,  to  a  trial  by  jury. 
(Art.  VII.)8 

7TJ.  S.  v.  Coolidge,  (1816)  1  Wheat.  (U.  S.)  415;  Ex  p.  Kearney, 
(1822)  7  Wheat.  (U.  S.)  38;  U.  S.  v.  Mills,  (1833)  7  Pet.  (U.  S.) 
142;  Barren  v.  Baltimore,  (1833)  7  Pet.  (U.  S.)  243;  Fox  v.  Ohio, 
(1847)  5  How.  (U.  S.)  410;  Withers  v.  Buckley,  (1857)  20  How. 
(U.  S.)  84;  Ex  p.  Milligan,  (1866)  4  Wall.  (U.  S.)  2;  Twitchell 
V.  Pennsylvania,  (1868)  7  Wall.  (U.  S.)  321;  Miller  V.  U.  S., 
(1870)  11  Wall.  (U.  S.)  268;  U.  S.  v.  Cook,  (1872)  17  Wall. 
(U.  S.)  168;  U.  S.  V.  Cruikshank,  (1875)  92  U.  S.  542;  Reynolds 
V.  U.  S.,  (1878)  98  U.  S.  145;  Spies  v.  Illinois,  (1887)  123  U.  S. 
131;  Brooks  v.  Missouri,  (1888)  124  U.  S.  394;  Callan  v.  Wilson, 
(1888)  127  U.  S.  540;  Eilenbecker  v.  Plymouth  County,  (1890) 
134  U.  S.  31;  Jones  v.  U.  S.,  (1890)  137  U.  S.  202;  Cook  v.  U.  S., 
(1891)  138  U.  S.  157;  In  re  Shibuya  Jugiro,  (1891)  140  U.  S.  291; 
In  re  Ross,  (1891)  140  U.  S.  453;  Fong  Yue  Ting  v.  U.  S.,  (1893) 
149  U.  S.  698;  Mattox  v.  U.  S.,  (1895)  156  U.  S.  237;  Rosen  v. 
U.  S.,  (1896)  161  U.  S.  29;  U.  S.  v.  Zucker,  (1896)  161  U.  S.  475; 
Wong  Wing  v.  U.  S.,  (1896)  163  U.  S.  228;  Thompson  V.  Utah, 
(1898)  170  U.  S.  343;  Maxwell  V.  Dow,  (1900)  176  U.  S.  581; 
Motes  v.  U.  S.,  (1900)  178  U.  S.  458;  Fidelity,  etc.,  Co.  v.  U.  S., 
(1902)  187  U.  S.  315;  Hawaii  v.  Mankichi,  (1903)  190  U.  S.  197. 

8TJ.  S.  v.  La  Vengeance,  (1796)  3  Ball.  (U.  S.)  297;  Columbia 
Bank  v.  Okely,  (1819)  4  Wheat.  (U.  S.)  235;  Parsons  v.  Bedford, 
(1830)  3  Pet.  (U.  S.)  433;  Livingston  V.  Moore,  (1833)  7  Pet. 
(U.  S.)  469;  Webster  V.  Reid,  (1850)  11  How.  (U.  S.)  437;  Penn- 
sylvania v.  Wheeling,  etc.,  Bridge  Co.,  (1851)  13  How.  (U.  S.) 
518;  Justices  V.  Murray,  (1869)  9  Wall.  (U.  S.)  274;  Edwards  v. 
Elliott,  (1874)  21  Wall.  (U.  S.)  532;  Pearson  v.  Yewdall,  (1877) 
95  U.  S.  294;  McElrath  V.  U.  S.,  (1880)  102  U.  S.  426;  Spies  v. 
Illinois,  (1887)  123  U.  S.  131 ;' Arkansas  Valley  Land,  etc.,  Co.  v. 
Mann,  (1889)  130  U.  S.  69;  Eilenbecker  v.  Plymouth  County, 
(1890)  134  U.  S.  31;  Whitehead  v.  Shattuck,  (1891),  138  U.  S. 


CITIZENSHIP  147 


59.  An  immunity.    From  having  any  fact  tried    Chapter 

by  a  jury  reexamined  in  any  court  of  the  United  ! 

States,  otherwise  than  according  to  the  rules  of  com-  j**5ial  of 
mon  law.     (Art.  VII.)9 

60.  An  immunity.    Against  the  requirement  of  and 
excessive  bail,  against  the  imposition  of  excessive 
fines,  and  against  the  infliction  of  cruel  and  unusual 
punishments.     (Art.  VIII.)1 

61.  A  declaration.    That  the  enumeration  in  the  ?*£*£ 
Constitution  of  certain  rights  shall  not  be  construed  right?/ 
to  deny  or  disparage  others  retained  by  the  people. 
(Art.  IX.)2 

62.  A  guarantee.    That  the  powers  not  dele-  *0e*e™f 
gated  to  the  United  States  by  the  Constitution,  nor  powers- 

146;  Scott  v.  Neely,  (1891)  140  U.  S.  106;  Gates  v.  Allen,  (1893) 
149  U.  S.  451;  Fong  Yue  Ting  v.  U.  S.,  (1893)  149  U.  S.  698; 
Coughran  v.  Bigelow,  (1896)  164  U.  S.  301;  Walker  v.  New  Mexico, 
etc.,  R.  Co.,  (1897)  165  U.  S.  593;  Chicago,  etc.,  R.  Co.  v.  Chi- 
cago, (1897)  166  U.  S.  226;  American  Pub.  Co.  v.  Fisher,  (1897) 
166  U.  S.  464;  Fidelity,  etc.,  Co.  v.  U.  S.,  (1902)  187  U.  S.  315. 

9  See  cases  cited  in  note  1,  supra. 

iPervear  v.  Massachusetts,  (1866)  5  Wall.  (U.  S.)  475;  Spies  17. 
Illinois,  (1887)  123  U.  S.  131;  Manning  v.  French,  (1890)  133 
U.  S.  186;  Eilenbecker  v.  Plymouth  County,  (1890)  134  U.  S.  31; 
McElvaine  v.  Brush,  (1891)  142  U.  S.  155;  O'Neil  v.  Vermont, 
(1892)  144  U.  S.  323;  McDonald  v.  Massachusetts,  (1901)  180 
U.S.  311. 

2  Livingston  v.  Moore,  (1833)  7  Pet.  (U.  S.)  469;  Spies  v.  Illi- 
nois, (1887)  123  U.  S.  131. 

"This  government  is  acknowledged  by  all  to  be  one  of  enumerated 
powers.  The  principle,  that  it  can  exercise  only  the  powers  granted 
to  it,  would  seem  too  apparent  to  have  required  to  be  enforced  by 
all  those  arguments  which  its  enlightened  friends,  while  it  was  de- 
pending before  the  people,  found  it  necessary  to  urge.  That  prin- 
ciple is  now  universally  admitted.  But  the  question  respecting  the 
extent  of  the  powers  actually  granted  is  perpetually  arising,  and 
will  probably  continue  to  arise,  as  long  as  our  system  shall  exist.'* 
M'Culloch  v.  Maryland,  (1819)  4  Wheat.  (U.  S.)  405. 


148  CITIZENSHIP 


chapter    prohibited  to  the  States,  are  reserved  to  the  States 
'• —  respectively,  or  to  the  people.     (Art.  X.)3 

powers  af.        In  Lloyd  v.  Dollison,  decided  May  16,  1904,  the 

fected    by 

schisholm  v.  Georgia,  (1793)  2  Ball.  (U.  S.)  419;  Hollings- 
worth  v.  Virginia,  (1798)  3  Dall.  (U.  S.)  378;  Martin  v.  Hunter, 
(1816)  1  Wheat.  (U.  S.)  304;  M'Culloch  v.  Maryland,  (1819)  4 
Wheat.  (U.  S.)  316;  Anderson  v.  Dunn,  (1821)  6  Wheat.  (U.  S.) 
204;  Cohen  v.  Virginia,  (1821)  6  Wheat.  (U.  S.)  264;  Osborn  v. 
U.  S.  Bank,  (1824)  9  Wheat.  (U.  S.)  738;  Buckner  v.  Finley, 
(1829)  2  Pet.  (U.  S.)  586;  Ableman  v.  Booth,  (1858)  21  How. 
(U.  S.)  506;  Collector  v.  Day,  (1870)  11  Wall.  (U.  S.)  113;  Claflin 
17.  Houseman,  (1876)  93  U.  S.  130;  Inman  Steamship  Co.  v.  Tinker, 
(1876)  94  U.  S.  238;  U.  S.  v.  Fox,  (1876)  94  U.  S.  315;  Tennessee 
V.  Davis,  (1879)  100  U.  S.  257;  Spies  v.  Illinois,  (1887)  123  U.  S. 
131;  Pollock  17.  Farmers'  L.  &  T.  Co.,  (1895)  157  U.  S.  429;  For- 
syth  v.  Hammond,  (1897)  166  U.  S.  506;  St.  Anthony  Falls  Water 
Power  Co.  17.  St.  Paul  Water  Com'rs,  (1897)  168  U.  S.  349;  Mis- 
souri, etc.,  R.  Co.,  v.  Haber,  (1898)  169  U.  S.  613;  Hancock  Mut. 
L.  Ins.  Co.  17.  Warren,  (1901)  181  U.  S.  73;  Kansas  17.  Colorado, 
(1902)  185  U.  S.  125;  Andrews  v.  Andrews,  (1903)  188  U.  S.  14; 
Church  17.  Kelsey,  (1887)  121  U.  S.  282;  Ouachita  Packet  Co.  17. 
Aiken,  (1887)  127  U.  S.  444;  Western  Union  Tel.  Co.  v.  Pendleton, 
(1887)  122  U.  S.  347;  Bowman  v.  Chicago,  etc.,  R,.  Co.,  (1888)  125 
U.  S.  465;  Mahon  17.  Justice,  (1888)  127  U.  S.  700;  Leisy  v.  Hardin, 
(1890)  135  U.  S.  100;  Manchester  17.  Massachusetts,  (1891)  139 
U.  S.  240. 

"  The  perpetuity  and  indissolubility  of  the  Union  by  no  means 
implies  the  loss  of  distinct  and  individual  existence,  or  of  the  right 
of  self-government  by  the  States.  Under  the  Articles  of  Confedera- 
tion each  State  retained  its  sovereignty,  freedom,  and  independence, 
and  every  power,  jurisdiction,  and  right  not  expressly  delegated  to 
the  United  States.  Under  the  Constitution,  though  the  powers  of 
the  States  were  much  restricted,  still,  all  powers  not  delegated  to 
the  United  States,  nor  prohibited  to  the  States,  are  reserved  to  the 
States  respectively,  or  to  the  people.  .  .  .  Not  only,  therefore, 
can  there  be  no  loss  of  separate  and  independent  autonomy  to  the 
States,  through  their  union  under  the  Constitution,  but  it  may  be 
not  unreasonably  said  that  the  preservation  of  the  States,  and  the 
maintenance  of  their  governments,  are  as  much  within  the  design 
and  care  of  the  Constitution  as  the  preservation  of  the  Union  and 
the  maintenance  of  the  national  government.  The  Constitution,  in 
all  its  provisions,  looks  to  an  indestructible  Union,  composed  of  in- 
destructible States."  Texas  17.  White,  (1868)  7  Wall.  (U.S.)  700. 


CITIZENSHIP  149 


Supreme  Court  said  that  the  first  eight  amendments    chapter 
to  the  Constitution  of  the  United  States  have  refer-  . 
ence  to  powers  exercised  by  the  government  of  the 
.United  States,  and  not  to  those  of  the  States.4 

The  Eleventh  Amendment  to  the  Constitution  re- 
lates simply  to  a  limitation  of  Federal  judicial 
power,  and  the  Twelfth  Amendment  to  the  manner 
in  which  presidential  and  vice-presidential  electors 
shall  meet  and  cast  and  certify  the  electoral  vote, 
and  to  the  manner  of  deciding  the  result;  so  that 
they  have  no  direct  significance  or  bearing  on  the 
rights  of  citizenship. 

The  first  ten  amendments  to  the  Constitution  ^°^'d 
were  proposed  to  the  legislatures   of  the  several  [f0nfi— "xh 
States  by  the  First  Congress,  September  25,  1789.  amend6-11 
They  were  ratified  by  the  States,  beginning  with  New 
Jersey,  November  20,  1789,  and  ending  with  Vir- 
ginia, December  15,  1791.     There  is  no   evidence 
on  the  journals  of  Congress  that  the  legislatures  of 
Connecticut,  Georgia,  or  Massachusetts  ratified  them. 

The  Eleventh  Amendment  was  proposed  to  the  i^ 
legislatures  of  the  several  States  by  the  Third  Con- 
gress,  September  5,  1794,  and  was  declared  to  have 
been  ratified  by  the  legislatures  of  three-fourths  of 
the  States,  in  a  message  from  the  President  to  Con- 
gress dated  January  8,  1798. 

The  Twelfth  Amendment  to  the  Constitution  was  —  The 

Twelfth 

proposed  to  the  legislatures  of  the  several  States  £ennet"d" 
by  the   Eighth   Congress,   December   12,    1803,   in 

4  Ohio  V.  Dollison,  (1904)  194  U.  S.  445. 

"  That  the  first  ten  articles  of  amendment  were  not  intended  to 
limit  the  powers  of  the  State  governments  in  respect  to  their  own 
people,  but  to  operate  on  the  national  government  alone,  was  de- 
cided more  than  a  half  century  ago,  and  that  decision  has  been 
steadily  adhered  to  since."  Spies  v.  Illinois,  (1887)  123  U.  S.  166. 


150  CITIZENSHIP 


Chapter    }ieu  of  the  original  third  paragraph  of  the  first  sec- 

IV'       tion  of  the  second  article,  and  was  declared  adopted 

in  a  proclamation  of  the  Secretary  of  State,  Septem- 
ber 25,  1804. 

From  1804  to  1865  the  Constitution  and  twelve 
amendments  remained  unchanged. 

I7stThthree  Jt  was  not  until  Fe^ruary  1,  1865,  that  the  Thir- 
£SS!"  teenth  Amendment  or  first  of  the  great  "war  amend- 
ments "  was  proposed.  It  was  declared  adopted  in 
a  proclamation  of  the  secretary  of  state,  dated  De- 
cember 18,  1865.  The  Fourteenth  Amendment  was 
proposed  June  16,  1866,  and  declared  adopted  July 
21,  1868.  The  Fifteenth  Amendment  was  proposed 
February  27, 1869,  and  proclaimed  as  adopted  March 
30, 1870. 

Let  us  now  inquire  into  the  rights,  privileges,  and 
immunities  of  citizens,  as  citizens   of  the  United 
States  and  of  their  respective  States,  during  the  first 
seventy-six  years  of  the  Union,  and  afterwards  ex- 
amine how  far  these  rights  have  been  modified,  or 
State  and  Federal  control  of  them  changed,  by  the 
amendments  consequent  upon  the  great  Civil  War. 
The  following  reflections  must  result  to  every 
student  of  the  subject,  from  the  aforegoing  recital. 
thlghtstates        First.     That  the  correlative  relations  of  govern- 
union?        ment  and  citizenship  were  absolute  and  unqualified 
as  between  the  States  and  their  citizens  after  the 
States  gained  independence  and  prior  to  the  forma- 
tion of  the  Union. 

federal0*  Second.  That  the  Federal  government  when 
formed  was  one  of  limited  scope  and  powers,  and 
after  its  formation,  notwithstanding  the  creation  and 


CITIZENSHIP 


recognition  of  the  sixty-odd  Federal  rights,  privi-    Chapter 
leges,  and  immunities  as  citizens  of  the  Union,  above  - 

set  forth,  a  vast  residuum  of  power  and  control  over 
the  rights,  privileges,  and  immunities  of  their  citi- 
zens remained  in  the  States. 

Third.  That  the  Federal  government,  while  su- 
preme in  its  sphere,  was  not  framed  to  reach,  and 
its  creation  did  not  affect,  the  undelegated  powers 
of  the  States,  in  municipal  affairs,  over  their  own 
citizens,  and  that  its  power  over  such  was  expressly 
negatived  by  the  instrument  which  brought  it  into 
being. 

This  is  so  manifest  that  the  Constitution  might 
well  have  begun  with  the  language  of  the  last  of  the 
ten  first  amendments,  for  the  States  existed  before 
their  representatives  created  the  Union  by  the  dele- 
gation of  certain  enumerated  powers,  and  it  goes 
without  saying  that  "the  powers  not  delegated  to 
the  United  States  by  the  Constitution  are  reserved 
to  the  States  respectively  or  to  the  people. ' ' 

The  rights  of  citizens,  both  as  citizens  of  the  tantionpsre' 
United  States  and  of  the  States,  under  nearly  every 


clause  of  the  Constitution  and  the  first  twelve 
amendments,  were  fully  considered  and  defined  be- 
fore the  outbreak  of  our  great  Civil  War,  by  the 
Supreme  Court  of  the  United  States.  To  the  great 
glory  of  that  tribunal  it  may  be  truly  said  that  its 
interpretations  have  been  universally  recognized  as 
wise,  conservative  and  just ;  that  if  it  has  erred  at  all 
it  has  been  rather  towards  the  reserved  powers  of 
the  States  than  towards  an  enlargement  of  Federal 
power  by  implication;  that  for  the  most  part  its 
judgments  have  remained  unaffected  by  the  excite- 


152 


CITIZENSHIP 


IV. 


Necessity 
of  study- 
ing the 
decisions. 


Chapter  ments  and  changes  of  civil  conflict;  and  that,  even 
concerning  such  of  its  decisions  as  have  been  re- 
versed by  the  logic  of  events,  the  wisdom  and  justice 
of  its  action  upon  the  law  and  the  facts  then  before 
it  are  now  universally  admitted,  however  bitterly 
they  may  have  been  aspersed  at  the  time  those  de- 
cisions were  rendered. 

The  footnotes  on  the  foregoing  pages  have  set 
forth  every  decision  of  the  Supreme  Court  upon 
every  clause  of  the  Constitution  and  amendments, 
bearing  on  the  rights,  privileges,  and  immunities  of 
citizens,  and  a  careful  study  of  those  decisions,  as 
they  relate  to  each  of  the  subjects  above  set  forth, 
must  be  the  only  satisfactory  road  to  a  mastery  of 
the  subjects.  What  follows  is  a  mere  surface  index 
of  the  substance  of  the  decisions  upon  the  most  im- 
portant of  those  questions,  intended  to  stimulate  to  a 
thorough  study  of  the  cases. 

The  citation  of  authorities  in  connection  with  a 
statement  of  the  minor  topics  is  deemed  a  sufficient 
reference  to  them. 

Proceeding  to  consider  the  more  important  top- 
ics in  the  order  of  their  presentation  above,  we  come 
first  to  the  subject — 

Taxation  of  the  Citizen  (Right  3  above). 

The  power  of  taxation  of  the  citizen  by  the  States 
*s  unlimited  by  law  save  concerning  taxes  on  exports 
or  imports  or  tonnage  duties.  It  is  limited  in  the 
United  States  by  only  three  conditions,  the  first  be- 
ing that  it  cannot  tax  exports,  the  second  that  direct 
taxes  shall  be  apportioned  among  the  several  States 
according  to  their  respective  numbers,  and  the  third 


Limita- 
tions  on 
the    taxing 
power. 


CITIZENSHIP  153 


that  all  duties,  imposts,  and  excises  shall  be  uniform    Chapter 
throughout  the  United  States.5 


The  grant  of  taxing  power  to  the  United  States 
by  the  Constitution  has  been  held  to  be  an  absolute 
grant  subject  only  to  the  above  limitations.  More- 
over, the  power  of  taxation  possessed  by  the  United 
States  over  citizens  of  the  District  of  Columbia  has 
been  held  to  be  as  unlimited  as  that  possessed  by  the 
States  over  their  citizens. 

Many  cases  have  arisen  in  which  the  question  was  SectoioiXx 
whether  the  particular  tax  involved  in  the  contro-  atlon' 
versy  was  a  direct  tax ;  but  in  all  such  cases  the  de- 
cision turned  on  that,  as  a  question  of  fact,  and  was 
not  instructive  beyond  the  understanding  of  the  par- 
ticular statute  involved;  for,  with  the  nature  of  the 
tax  settled,  the  legal  principles  applicable  to  it  were 
those  stated  above. 

A  most  thorough  and  exhaustive  discussion  of  the 
nature  and  extent  of  Federal  taxing  power  and  of 
what  does  and  does  not  constitute  a  direct  tax  will  be 
found  in  the  case  of  Pollock  v.  Farmers'  L.  &  T.  Co.* 

Of  the  Immunity  of  the  Citizen  from  Arrest,  while 
Attending  Congress,  and  in  Going  to  and  Return- 
ing from  the  Same,  and  from  Being  Questioned 
in  Any  Other  Place  for  Any  Speech  or  Debate 
(Immunity  7  above). 

This  is  an  old  and  salutary  provision  intended  ^tonrjture 

6  "Apportionment  is  an  operation  on  States,  and  involves  valua-    tive    privi- 
tions  and  assessments  which  are  arbitrary,  and  should  not  be  re-     ege* 
sorted  to  but  in  case  of  necessity.     Uniformity  is  an  instant  opera- 
tion on  individuals,  without  the  intervention  of  assessments,  or  any 
regard  to  States,  and  is  at  once  easy,  certain,  and  efficacious."     Per 
Paterson,  J.,  in  Hylton  v.  U.  S.,  (1796)   3  Dall.   (U.  S.)    180. 

6  (1895)  157  U.  S.  429,  158  U.  S.  601. 


154  CITIZENSHIP 


Chapter    to  secure  to  the  representative  the  utmost  degree  of 

, —  freedom  in  the  discharge  of  his  public  duties.    A 

similar  provision  will  be  found  in  the  constitutions 
of  most  of  the  States  concerning  their  State  legis- 
lators, and  the  provision  was  adopted  from  the  priv- 
ileges accorded  to  members  of  the  British  Parlia- 
ment. As  to  the  nature  and  extent  of  the  privilege, 
the  case  of  Kilbourn  v.  Thompson'1  will  be  found 
instructive.  Mr.  Justice  Story  in  his  Commentaries 
on  the  Constitution  (Sec.  866)  refers  to  it  as  a  " great 
and  vital  privilege." 

Of  the  Immunity  of  the  Citizen  from  State  Interfer- 
ence with  the  Regulation  of  Commerce  with  For- 
eign Nations,  and  among  the  Several  States  and 
with  the  Indian  Tribes  (Immunity  11  above). 

?earrf«ence  This  exclusive  power  of  regulating  commerce 
was  con^erre(^  upon  Congress  for  a  reason.  It  was 
the  offspring  of  many  short-sighted,  vexatious,  and 
discriminating  regulations  imposed  by  the  States 
upon  vessels  from  other  States  entering  their  ports, 
while  they  retained  the  power  to  legislate  on  the  sub- 
ject under  the  Articles  of  Confederation.  The  trans- 
fer of  the  subject  to  exclusive  Federal  control  was 
made  deliberately  after  these  embarrassing  experi- 
ences. Nearly  a  hundred  years  ago  the  Supreme 
Court  declared  that  it  was  doubtful  whether  any  of 
the  evils  of  weakness  under  the  Articles  of  Confed- 
eration contributed  more  to  the  adoption  of  the  Con- 
stitution than  the  conviction  that  "commerce  ought 
to  be  regulated  by  Congress." 

No  clause  of  the  Federal  Constitution  has  given 

7  (1880)    103  U.   S.   168. 


CITIZENSHIP  155 


rise  to  more  litigation  than  this  so-called  commerce    chapter 
clause.    It  was  first  interpreted  by  Chief  Justice          ' 
Marshall  in  Gibbons  v.  Ogden,7*  and  its  scope  and  J^jf*tiotnhe 
legal  effect  have  been  under  consideration  in  about  cia£Te!rce 
two  hundred  and  fifty  cases  since  then  decided  by  the 
Supreme  Court  of  the  United  States.    Many  vol- 
umes have  been  written  concerning  the  rights  of 
citizens  under  this  clause,  and  it  would  be  beyond  the 
scope  of  this  work  to  set  forth  even  an  epitome  of 
the  decisions  interpreting  it  rendered  by  the  Su- 
preme Court. 

We  shall  content  ourselves  with  a  statement  of  a 
few  of  the  leading  principles  settled  by  the  adjudi- 
cated cases,  and  the  remark  that  the  litigation  has, 
for  the  most  part,  arisen  out  of  acts  of  State  legis- 
latures, which  have  been  challenged  as  invading  the 
exclusive  province  of  Congress  to  regulate  inter- 
state commerce,  etc. 

The  first  important  case  arising  under  this  clause 
was,  as  above  stated,  Gibbons  v.  Ogden,8  and  the  last  decisions- 
case  of  importance  decided  by  the  Supreme  Court  is 
the  celebrated  so-called  "merger  decision, "  involv- 
ing the  right  of  Congress,  in  the  exercise  of  its 
power  to  regulate  commerce,  to  pass  laws  forbidding 
the  merger  of  corporations  owning  parallel  and  com- 
peting lines  and  engaged  in  interstate  commerce.9 

The  master  mind  of  Marshall  in  the  first  case  an- 
nounced the  following  fundamental  principles,  which 
remain  undisturbed: 

1.  That  the  grant  of  powers  to  Congress,  in  the 
particulars  named,  was  not  only  absolute  and  em-  of  Federal 


siveness 
of  Fed 
power. 

7*  (1824)  9  Wheat.  (U.  S.)  1. 
s  (1824)  9  Wheat.  (U.  S.)  1. 
»  Northern  Securities  Co.  v.  U.  S.,  (1904)  193  U.  S.  197. 


156  CITIZENSHIP 


Chapter    braced  the  power  to  regulate  navigation,  but  was 
'. —  exclusive  of  any  rights  of  States  to  legislate  on  the 


.  subject. 

2.  That  it  did  not  affect  the  right  of  the  States 
tfectad.   to  legislate  on  purely  internal  commerce  or  to  enact 

inspection  laws  and  health  laws,  or  purely  police 
regulations. 

3.  That  the  laws  last  named  "form  a  portion  of 
that  immense  mass  of  legislation  which  embraces 
everything  within  the  territory  of  a  State,  not  sur- 
rendered to  the  general  government;  all  which  can 
be  most  advantageously   exercised  by  the   States 
themselves.    Inspection     laws,     quarantine     laws, 
health  laws  of  every  description,  as  well  as  laws  for 
regulating  the  internal  commerce  of  a  State,  and 
those  which  respect  turnpike  roads,  ferries,  etc.,  are 
component  parts  of  this  mass.    No  direct  general 
power  over  these  objects  is  granted  to  Congress,  and 
consequently  they  remain  subject  to  State  legisla- 
tion/' 

4.  But  where  the  States,  in  the  exercise  of  the 
powers  last  mentioned,  enact  laws  which  come  in 
conflict  with  Federal  laws  regulating  commerce,  the 
acts  of  the  State  must  yield  to  the  laws  of  Congress. 
That  the  nullity  of  all  such  acts  is  produced  by  the 
declaration  that  the  Constitution  is  supreme.1 

Ofeg-          Throughout  all  the  multitudinous  litigation  which 
-jias  £ 0}}owe(j  arising  under  this  clause  the  soundness 

iThe  power  conferred  by  this  provision  of  the  Constitution  "is 
the  power  to  regulate;  that  is,  to  prescribe  the  rule  by  which  com- 
merce is  to  be  governed.  This  power,  like  all  others  vested  in 
Congress,  is  complete  in  itself,  may  be  exercised  to  its  utmost  ex- 
tent, and  acknowledges  no  limitations,  other  than  are  prescribed  in 
the  Constitution."  Per  Mr.  Chief  Justice  Marshall,  in  Gibbons  V. 
Ogden,  (1824)  9  Wheat.  (U.  S.)  197. 


CITIZENSHIP  157 


of  these  principles  has  never  been  questioned.    If  the    chapter 
case  has  arisen  upon  a  State  statute  the  question        v' 
has  been,  Does  the  State  statute  directly  legislate 
on  the  forbidden  subject?    If  so,  it  is  void.    Does  it, 
although  within  the  general  scope  of  State  power, 
in  its  effect  regulate  interstate  commerce,  etc?    If 
so,  it  must  yield  to  the  exclusive  power  of  Congress 
to  control.2 

If  it  be  a  mere  regulation  of  inspection,  or  health, 
or  exercise  of  the  unquestioned  police  powers  of 
the  State,  and  its  effect  on  commerce  be  merely 
incidental  and  not  determinative,  then  it  is  a  law 
within  the  powers  of  the  State. 

If  the  question  has  arisen  upon  a  Federal  statute, 
the  first  inquiry  has  invariably  been,  Is  the  law,  leglslatlon- 
fairly  construed,  a  regulation  of  that  class  of  com- 
merce committed  absolutely  and  exclusively  by  the 
Constitution  to  the  regulation  of  Congress?  If  so, 
it  is  a  valid  law,  for  the  power  to  legislate  is  as 
broad  as  the  grant  of  exclusive  control. 

These  questions  have  arisen  in  infinite  variety 
and  complexity,  presenting  new  aspects  in  each  sue-  ti°ons.t 
cessive  case,  and  it  is  impossible  to  generalize  them 

2  "The  power  to  regulate  commerce  covers  a  wide  field,  and  em- 
braces a  great  variety  of  subjects.  Some  of  these  subjects  call  for 
uniform  rules  and  national  legislation;  others  can  be  best  regulated 
by  rules  and  provisions  suggested  by  the  varying  circumstances  of 
different  localities,  and  limited  in  their  operation  to  such  localities 
respectively.  To  this  extent  the  power  to  regulate  commerce  may 
be  exercised  by  the  States.  Whether  the  power  in  any  given  case  is 
vested  exclusively  in  the  general  government  depends  upon  the  na- 
ture of  the  subject  to  be  regulated."  Oilman  v.  Philadelphia, 
(1865)  3  Wall.  (U.  S.)  726.  See  also  Cooley  v.  Board  of  Wardens, 
(1851)  12  How.  (U.  S.)  319;  Ex  p.  McNiel,  (1871)  13  Wall. 
(U.S.)  240;  Mobile  County  v.  Kimball,  (1881)  102  U.  S.  691;  Wall- 
ing v.  Michigan,  (1886)  116  U.  S.  455;  Robbins  v.  Shelby  County 
Taxing  Dist.,  (1887)  120  U.  S.  492. 


°stru 


158  CITIZENSHIP 


Chapter  in  this  discussion.  The  opposing  views  in  each  case 
'  are  the  result  of  two  theories  which  have  given  rise 
to  most  of  the  controversies  between  Federal  and 
State  authority,  viz.,  on  the  one  hand,  the  theory  of 
broad  latitudinarian  construction  of  Federal  powers, 
and,  on  the  other,  the  theory  of  strict  construction. 
Pursuing  the  one  or  the  other  of  these  theories,  men 
of  the  highest  intellect  and  character  have,  from  the 
foundation  of  the  government,  been  arrayed  in  oppo- 
sition to  each  other  upon  every  important  question 
of  construction  that  has  arisen,  and  perhaps  no 
more  striking  illustration  of  this  irreconcilable  con- 
flict of  views  may  be  found  in  our  whole  judicial 
literature  than  in  the  earnest,  almost  angry,  dis- 
cordance of  our  Supreme  Court  in  the  last  important 
decision  on  this  commerce  clause.3 
of  But  the  constitutional  inhibition  does  not  prevent 

game  laws.  foe  States  from  enacting  laws  which  prevent  non- 
residents from  engaging  in  certain  classes  of  em- 
ployments within  their  limits.  Such,  for  example,  is 
the  right  of  a  State  to  limit  the  right  to  fish  and 
hunt  within  her  borders  to  her  own  citizens.  It  has 
been  held  that  the  States  did  not  invest  the  Federal 
government  with  any  portion  of  their  power  and 
control  over  fishing  and  hunting  within  their  bor- 
ders ;  that  the  fish  and  shellfish  and  game  in  every 
State  belong  to,  peculiarly  and  of  right,  and  form 
part  of  the  food  supply  of,  the  people  in  each  State, 
and  that  it  is  within  the  police  powers  of  the  State, 
without  any  right  of  interference  by  Federal  author- 
ity, to  determine  who  shall  and  who  shall  not  take 
the  fish  and  game  within  her  borders,  and  even  to 

*  Northern  Securities  Co.  v.  U.  S.,  (1904)  193  U.  S.  197. 


CITIZENSHIP  159 


prohibit  the  shipping  of  the  same  beyond  the  limits  chapter 
of  the  State.  Thus  when  a  Virginia  law  punished  a  ' 
citizen  of  Maryland  for  taking  oysters  from  Vir- 
ginia oyster  beds,  and  he  claimed  that  he  was  en- 
gaged in  commerce,  the  Supreme  Court  sustained 
the  State  law,  and  denied  the  claim  of  license  to  fish 
in  Virginia  waters  as  a  matter  of  commercial  right.4 
So,  a  law  of  Connecticut  regulating  the  manner 
of  taking  game  in  that  State  and  forbidding  its  ex- 
portation was  held  valid.5  The  duty  of  preserving 
the  game  was  declared  to  be  a  trust  for  her  own 
people.  And  State  laws  prohibiting  exhaustive 
methods  of  fishing  in  waters  within  State  jurisdic- 
tion, or  the  use  of  destructive  instruments,  are  with- 
in the  powers  of  the  State.6 

The  Right  of  the  Citizen  to  the  Writ  of  Habeas 
Corpus  (Right  23  above). 

Blackstone  calls  the  writ  of  habeas  corpus  "  the 
most  celebrated  writ  in  the  English  law,"7  and  he  cSrPus.e 
refers  to  the  famous  Habeas  Corpus  Act  of  England, 
31  Charles  II,  c.  2,  as  "frequently  considered  as  an- 
other Magna  Charta." 

The  Supreme  Court  of  the  United  States  thus 
characterizes  it:  "The  great  writ  of  habeas  corpus 
has  been  for  centuries  esteemed  the  best  and  only 
sufficient  defense  of  personal  freedom.  In  England, 
after  a  long  struggle,  it  was  firmly  guaranteed  by  the 
famous  Habeas  Corpus  Act  of  May  27, 1679.  .  . 
It  was  brought  to  America  by  the  colonists  and 

^McCready  v.  Virginia,   (1876)  94  U.  S.  391. 
»Geer  v.  Connecticut,   (1896)   161  U.  S.  519. 
eLawton  v.  Steele,  (1894)   152  U.  S.  133. 
7  3  Bl.  Com.  129. 


CITIZENSHIP 


Chapter  claimed  as  among  the  immemorial  rights  descended 
IV'  to  them  from  their  ancestors. "  8  Of  this  writ  it  may 
be  said  truly  that  it  has  elicited  more  encomiums 
from  bench  and  bar  than  any  other  in  the  books,  and 
that  discussion  of  it  seems  to  arouse  whatever  of  elo- 
quence judges  and  advocates  may  possess. 

th°ern^rif  In  form  it  is  a  writ  emanating  from  the  judicial 

source  intrusted  with  its  keeping  and  issuance,  di- 
rected to  the  custodian  of  any  person  detained  on 
a  criminal  or  a  civil  charge,  directing  him  to 
produce  the  body  of  the  person  in  custody  at  a  time 
and  place  designated  in  the  writ,  together  with  the 
causes  of  his  detention,  and  then  and  there  to  submit 
to  and  receive  whatever  judgment  the  judge  or  court 
awarding  the  writ  shall  consider  in  that  behalf.  The 
name  of  the  writ  originated  in  the  fact  that  at  the 
time  it  came  into  use  all  writs  in  England  were  writ- 
ten in  Latin,  and  this  particular  writ  directed  the 
custodian  of  the  prisoner  "habeas  corpus,"  "thou 
shalt  have  the  body"  of  so  and  so,  at  such  and  such 
time  and  place. 

various  it  is  not  within  the  purpose  of  this  work  to 

purposes 

corpus"8  elaborate  the  different  kinds  of  writs  of  habeas  cor- 
pus and  the  different  purposes  for  which  they  are 
invoked.  That  may  be  seen  by  reference  to  the  au- 
thorities quoted.  There  were  writs  of  habeas  cor- 
pus ad  respondendum,  or  to  enable  the  party  apply- 
ing for  the  writ  to  obtain  an  answer  of  some  sort 
from  the  party  in  custody ;  and  writs  ad  satis  facien- 
dum, or  to  satisfy  a  judgment  or  other  demand, 
which  writ  does  not  exist  with  us;  or  ad  prose- 
quendum,  ad  testificandum,  ad  deliberandum,  to 

s Ex  p.  Yerger,  (1868)  8  Wall.   (U.  S.)  95. 


CITIZENSHIP 


prosecute   something,   to  testify  about  something,    Chapter 
to  deliberate  about  something.    It  is  a  common  thing,          ' 
for  example,  where  a  prisoner  confined  in  jail  or 
penitentiary  is  a  necessary  witness  at  a  trial,  to  have 
him  produced  in  court  by  a  writ  of  habeas  corpus 
ad  testificandum  issued  by  the  trial  judge  or  other 
authority. 

But  the  common  writ,  the  one  cherished  as  none  ™e  com- 
other,  is  the  writ  of  habeas  corpus  ad  subjiciendum 
et  recipiendum,  commanding  the  custodian  to  pro- 
duce the  body  of  his  prisoner  and  submit  to  and 
receive  whatever  judgment  the  judge  or  court  award- 
ing the  writ  shall  see  fit  to  render.  The  power  of  the 
judge  or  court  issuing  the  writ  is,  upon  the  produc- 
tion of  the  accused  together  with  the  causes  of  his 
detention,  and  after  hearing  the  matter  fully,  to 
discharge  him,  admit  him  to  bail,  or  remand  him  to 
custody.  Nearly  all  the  States  have  guarantees  of 
the  privileges  of  the  writ  of  habeas  corpus  in  their 
constitutions,  and  all  have  statutes  providing  for 
the  manner  of  its  issuing. 

But  there  is  this  distinction  between  writs  of  J 
habeas  corpus  issued  by  Federal  courts  and  judges  wnts- 
and  those  issued  by  State  courts  and  judges.    A  writ 
may  issue  from  Federal  authority  to  a  person  hold- 
ing another  in  custody  under  State  authority,  in 
certain  cases.9    But  a  State  court  or  judge  cannot 
issue  a  writ  of  habeas  corpus  against  a  person  hav-» 
ing  a  prisoner  in  custody  under  the  authority  of  the 
United  States.1 

» In  re  Neagle,    (1890),   135  U.   S.   1;   In  re  Frederic*,    (1893) 
149  U.  S.  70. 

lAbleman  v.  Booth,  (1858)  21  How.  (U.  S.)  506;  Tarble's  Case, 
(1871)   13  Wall.  (U.  S.)  397. 
11 


162 


CITIZENSHIP 


Chapter 
IV. 


Origin, 
history, 
etc. —  sus- 
pension. 


The  reason  for  the  distinction  is  obvious  from  the 
frame  of  the  government,  for  the  Federal  jurisdiction 
is,  in  its  sphere,  supreme,  and  where  Federal  and 
State  laws  conflict  the  latter  must  yield  to  the 
former,  and  the  view  of  their  jurisdiction  taken  by 
Federal  tribunals  must  prevail.  So  that  while  an 
inquiry  by  a  Federal  tribunal  into  a  detention  under 
State  authority  would  be  determinative,  a  like  in- 
quiry by  a  State  tribunal  into  a  detention  under 
Federal  authority  would  not  be  determinative  or 
obligatory  on  the  Federal  authority.2 

The  cases  cited  above  in  the  note  attached  to  the 
statement  of  the  rights  of  the  citizen  to  the  writ  of 
habeas  corpus  (note  4,  p.  125)  will  furnish  the  stu- 
dent with  such  further  information  as  he  may  de- 
sire concerning  the  origin,  nature  and  history  of,  and 
the  manner  of  applying  for,  the  writ,  and  the  cases  to 
which  it  does  not  extend,  as  well  as  those  to  which  it 
does  extend.  We  may  leave  the  subject  with  the 
final  remark  that  the  suspension  of  the  writ,  no  mat- 
ter what  may  have  been  the  exigency  on  which  such 
action  has  been  justified,  has  always  been  viewed 
with  the  utmost  jealousy  by  the  American  people, 

2  "  The  great  and  leading  intent  of  the  Constitution  and  the  law 
must  be  kept  constantly  in  view  upon  the  examination  of  every 
question  of  construction.  That  intent,  in  respect  to  the  writ  of 
habeas  corpus,  is  manifest.  It  is  that  every  citizen  may  be  pro- 
tected by  judicial  action  from  unlawful  imprisonment.  To  this  end 
the  Act  of  1789  provided  that  every  court  of  the  United  States 
should  have  power  to  issue  the  writ.  The  jurisdiction  thus  given 
in  law  to  the  circuit  and  district  courts  is  original;  that  given  by 
the  Constitution  and  the  law  to  this  court  is  appellate.  Given  in 
general  terms,  it  must  necessarily  extend  to  all  cases  to  which  the 
judicial  power  of  the  United  States  extends,  other  than  those  ex- 
pressly excepted  from  it."  Ex  p.  Yerger,  (1868)  8  Wall.  (U.  S.) 
101. 


CITIZENSHIP  163 


and  the  opinion  of  Chief  Justice  Taney  in  the  habeas  chapter 

corpus  case  of  Ex  p.  Milligan*  is  one  of  the  finest  _L_ 

pieces  of  judicial  eloquence  in  American  jurispru- 
dence. 

Of  the  Immunity  of  the  Citizen  Against  Bills  of 
Attainder  and  Ex  Post  Facto  Laws  (Immunity 
24  above). 

This  immunity  is  guaranteed,  both  as  against  the 
Nation  and  the  State  (Art.  I,  Sec.  9,  01.  3,  and  Art. 
I,  Sec.  10,  01.  I.)4 

A  bill  of  attainder  is  a  legislative  act  which  in-  ^"^  of 
flicts  punishments  without  a  judicial  trial.5     Such  attainder- 
bills  were,  in  England,  sometimes  directed  against 
individuals  by  name  and  sometimes  against  a  class. 
They  were  contrary  to  the  whole  spirit  of  our  insti- 
tutions, and  so  were  forbidden  by  general  consent  in 
the  Constitution,  both  as  against  the  Nation  and  the 
State. 

No  question  of  importance  arose  from  any  at- 
tempt  to  pass  such  measures  until  the  period  of  our 

3  (1866)  4  Wall.   (U.  S.)  2. 

4 "  So  much  importance  did  the  convention  attach  to  it  [the 
prohibition  against  the  passage  of  any  ex  post  facto  law],  that  it  is 
found  twice  in  the  Constitution,  first  as  a  restraint  upon  the  power 
of  the  general  government,  and  afterwards  as  a  limitation  upon  the 
legislative  power  of  the  States."  Kring  v.  Missouri,  (1882)  107 
U.  S.  227. 

"All  the  restrictions  contained  in  the  Constitution  of  the  United 
States  on  the  power  of  the  State  legislatures  were  provided  in 
favor  of  the  authority  of  the  Federal  government.  The  prohibi- 
tion against  their  making  any  ex  post  facto  laws  was  introduced  for 
greater  caution,  and  very  probably  arose  from  the  knowledge  that 
the  Parliament  of  Great  Britain  claimed  and  exercised  a  power  to 
pass  such  laws,  under  the  denomination  of  bills  of  attainder,  or 
bills  of  pains  and  penalties."  Calder  v.  Bull,  (1798)  3  Ball.  (U.  S.) 
386. 

eCummings  v.  Missouri,  (1866)  4  Wall.   (U.  S.)   323. 


164  CITIZENSHIP 


Chapter    Civil  War,  when  laws  enacted  by  Missouri  and  West 

IV 

Virginia,  and  even  the  rules  adopted  by  the  Supreme 
Court  of  the  United  States  itself,  were  challenged  as 
in  effect  bills  of  attainder.  The  discussions  in  the 
arguments  and  opinions  in  the  case  of  Cummings  v. 
Missouri?  and  Ex  p.  Garland?  are  full  of  historical 
and  legal  information  on  this  subject,  and  should  be 
carefully  read  by  the  student. 

"An  ex  post  facto  law  is  one  which  renders  an 
act  punishable  in  a  manner  in  which  it  was  not  pun- 
ishable when  it  was  committed. ' '  The  State  legisla- 
ture can  pass  no  ex  post  facto  law.8  This  is  the 
language  of  Chief  Justice  Marshall  in  the  first  case 
in  which  such  legislation  came  under  the  eye  of  the 
Supreme  Court.  And  of  the  reasons  leading  to  the 
adoption  of  those  clauses  of  the  Constitution  forbid- 
ding such  legislation  either  by  the  Nation  or  the 
State,  he  said:  "Whatever  respect  might  have  been 
felt  for  the  State  sovereignties,  it  is  not  to  be  dis- 
guised that  the  framers  of  the  Constitution  viewed 
with  some  apprehension  the  violent  acts  which  might 
grow  out  of  the  feelings  of  the  moment.  .  .  . 
The  restrictions  on  the  legislative  power  of  the 
States  are  obviously  founded  in  this  sentiment. ' ' 

But  an  act  imposing  a  succession  tax  on  aft  estate 

6  (1866)   4  Wall.   (U.  S.)   277. 

7  (1866)   4  Wall.   (U.  S.)   333. 

s  Fletcher  v.  Peck,   (1810)   6  Cranch  (U.  S.)   138. 

"Laws  of  this  character  are  oppressive,  unjust,  and  tyrannical; 
and,  as  such,  are  condemned  by  the  universal  sentence  of  civilized 
man.  The  injustice  and  tyranny  which  characterizes  ex  post  facto 
laws  consists  altogether  in  their  retrospective  operation,  which  ap- 
plies with  equal  force,  although  not  exclusively,  to  bills  of  attain- 
der." Ogden  v.  Saunders,  (1827)  12  Wheat.  (U.  S.)  266. 


CITIZENSHIP  165 

after  its  devolution,  during  the  period  of  admin-    chapter 
istration,  was  held  not  to  be  an  ex  post  facto  law.9  ' 


Of  the  Immunity  of  the  Citizen  Against  State  Laws 
Impairing  the  Obligation  of  Contracts  (Immunity 
29  above). 

The  same  reasons  which  prompted  the  Federal 
guarantee  against  the  passage  of  bills  of  attainder 
or  ex  post  facto  laws  by  the  States  doubtless  pro- 
duced this  guarantee  also.1  It  has  given  rise  to  an 
immense  amount  of  litigation.  The  principle  is  so 
plain  that  a  statement  of  the  law  is  sufficient,  but 
the  difficulty  and  doubt  in  the  many  cases  that  have 
cussion  of  the  nature  and  extent  of  the  rights  of  the 
arisen  have  been  in  determining  whether  the  State 

»  Carpenter  0.  Pennsylvania,  (1854)   17  How.  (U.  S.)  456. 

1  "As  the  clause  was  first  adopted,  the  words  concerning  con- 
tracts were  not  in  it,  because  it  was  supposed  that  the  phrase  '  ex 
post  facto  law '  included  laws  concerning  contracts  as  well  as  others. 
But  it  was  ascertained  before  the  completion  of  the  instrument  that 
this  was  a  phrase  which,  in  English  jurisprudence,  had  acquired  a 
signification  limited  to  the  criminal  law,  and  the  words  'or  law  im- 
pairing the  obligation  of  contracts'  were  added  to  give  security  to 
rights  resting  in  contracts.  2  Bancroft's  History  of  the  Constitu- 
tion, 213."  Kring  v.  Missouri,  (1882)  107  U.  S.  227. 

"The  evil  which  this  inhibition  on  the  States  was  intended  to 
prevent  is  found  in  the  history  of  our  Revolution.  By  repeated  acts 
of  legislation  in  the  different  States,  during  that  eventful  period, 
the  obligation  of  contracts  was  impaired.  The  time  and  mode  of 
payment  were  altered  by  law;  and  so  far  was  this  interference  of 
legislation  carried,  that  confidence  between  »an  and  man  was  well- 
nigh  destroyed.  Those  proceedings  grew  out  of  the  paper  system  of 
that  day;  and  the  injuries  which  they  inflicted  were  deeply  felt  in 
the  country  at  the  time  the  Constitution  was  adopted.  The  pro- 
vision was  designed  to  prevent  the  States  from  following  the  prece- 
dent of  legislation  so  demoralizing  in  its  effects,  and  so  destructive  to 
the  commercial  prosperity  of  a  country/  Per  Mr.  Justice  McLean^ 
in  Charles  River  Bridge  v.  Warren  Bridge,  (1837)  11  Pet.  (U.  S.) 
573.  See  also  Edwards  v.  Kearzey,  (1877)  96  U.  S.  604,  et  seq. 


CITIZENSHIP 


chapter  }aw  assailed  in  a  particular  case  did  impair  the 
IV>  vested  right  claimed. 

The  voi-  As  may  be  seen  by  reference  to  the  long  list  of 

litigation,  authorities  cited  in  connection  with  the  statement  of 
this  immunity,  it  would  be  impossible  to  consider, 
in  this  volume,  the  numerous  phases  which  the  dis- 
cussion of  the  nature  and  extent  of  the  rights  of  the 
citizen  under  this  clause  has  assumed.  That  would 
make  a  volume  in  itself. 

Sewsact  ^ne  case  whicn  sets  forth  with  most  learning  and 
ability  the  nature  and  extent  of  this  particular  Fed- 
eral guarantee,  and  the  one  most  frequently  cited, 
is  Charles  River  Bridge  v.  Warren  Bridge.2  It  was 
decided  in  1837,  and  the  opinion  of  the  court  was  de- 
livered by  Chief  Justice  Taney  in  one  of  the  strong- 
est of  his  many  able  opinions.  But  there  were  three 
dissents.  The  dissenting  opinions  of  Mr.  Justice 
McLean  and  Mr.  Justice  Story,  the  latter  concurred 
in  by  Mr.  Justice  Thompson,  are  such  striking,  pow- 
erful presentations  of  opposing  views  that  in  them  is 
found  the  germ  of  many  a  subsequent  effort  made  to 
unsettle  the  principles  fixed  by  the  great  decision. 
This  case  was  confined,  however,  to  a  discussion  of 
how  far  public  grants  of  franchises  are  revocable  by 
State  legislation  without  violating  the  clause  of  the 
Constitution  above  referred  to.  It  did  not  involve 
consideration  of  many  other  classes  of  State  legis- 
lation upon  which  the  question  of  the  impairment 
of  contracts  has  arisen. 

change  of  One  leading  distinction,  however,  running 
through  the  decisions,  should  be  briefly  referred  to, 
to  wit:  The  prohibition  does  not  restrain  the 

2  (1837)   11  Pet.   (U.  S.)  420. 


CITIZENSHIP  157 


States  from  changing  remedies,  and  a  change  in  a    Chapter 
remedy  provided  to  enforce  a  right  is  not  neces-  ! — 


sarily  an  impairment  of  the  right  itself.3 

To  a  full  comprehension  by  the  practicing  law- 
yer of  the  meaning  of  this  clause  and  its  bearing 
upon  State  legislation,  a  study  of  the  authorities 
cited  in  the  footnote  is  necessary,  indeed  indispensa- 
ble. As  there  is  no  middle  ground  between  this 
brief  consideration,  and  one  so  elaborate  that  it 
would  occupy  unwarranted  space  in  this  general 
treatise,  the  subject  is  left  to  some  other  author  who 
shall  deal  with  it  as  a  specialty. 

Of  the  Right  of  the  Citizens  of  Each  State  to  All  the 

Privileges  and  Immunities  of  Citizens  in  the  Sev- 

eral States  (Right  41  above). 

This  provision  was  in  the  Articles  of  Confedera-  ^^fes  of 
tion.    Indeed,  it  was  the  only  direct  guarantee  from  " 

the  United  States  to  the  individual  citizen  contained 
in  that  instrument. 

In  the  first  case  decided  by  the  Supreme  Court, 


involving  the  construction  of  this  clause,  Chief  Jus- 
tice Marshall  said  that  a  corporation  was  "cer- 
tainly not  a  citizen"  in  the  sense  that  the  word  is 
used  in  the  clause  referred  to.4  And  in  the  next  case 
the  same  illustrious  authority  held  that  a  citizen  of 
the  United  States,  residing  in  any  State  of  the  Union, 

3  "  It  is  competent  for  the  States  to  change  the  form  of  the 
remedy,  or  to  modify  it  otherwise,  as  they  may  see  fit,  provided  no 
substantial  right  secured  by  the  contract  is  thereby  impaired.  No 
attempt  has  been  made  to  fix  definitely  the  line  between  alterations 
of  the  remedy  which  are  to  be  deemed  legitimate,  and  those  which, 
under  the  form  of  modifying  the  remedy,  impair  substantial  rights. 
Every  case  must  be  determined  upon  its  own  circumstances."  Von 
Hoffman  v.  Quincy,  (1866)  4  Wall.  (U.  S.)  553. 

*U.  S.  Bank  v.  Deveaux,  (1809)  5  Cranch  (U.  S.)  61. 


163 


CITIZENSHIP 


corpora- 


Chapter    js  a  citizen  of  that  State.5    In  later  cases  it  has  been 

IV 

repeatedly  decided  that  corporations  are  not  citizens 
of  the  State  of  their  creation  within  the  meaning  of 
the  clause  now  under  consideration;  that  they  are 
creatures  of  the  local  law  of  the  place  of  their  crea- 
tion, without  any  absolute  right  to  recognition  in 
other  States.6 

A  State  statute  denying  jurisdiction  to  the  State 
courts  over  a  suit  by  a  foreign  corporation  against 
a  foreign  corporation  has  been  held  not  to  violate 
this  clause  of  the  Constitution.7  But  when  a  State 
law  made  it  a  condition  for  the  admission  of  a  for- 
eign corporation  to  do  business  in  the  State  that  the 
corporation  so  admitted  would  abstain  from  remov- 
ing any  suits  brought  against  it  or  otherwise  resort- 
ing to  the  federal  courts,  the  condition  was  held  to 
be  void  as  in  conflict  with  the  Constitution  of  the 
United  States.  This  was  decided,  however,  rather 
as  an  abridgment  of  the  rights  of  the  corporation 

eGassies  v.  Ballon,  (1832)  6  Pet.  (U.  S.)  761. 

e  Augusta  Bank  v.  Earle,  (1839)  13  Pet.  (U.  S.)  519;  Lafayette 
Ins.  Co.  v.  French,  (1855)  18  How.  (U.  S.)  404;  Ducat  V.  Chicago, 
(1870)  10  Wall.  (U.  S.)  410;  Liverpool  Ins.  Co.  v.  Massachusetts, 
(1870)  10  Wall.  (U.  S.)  566;  Paul  v.  Virginia,  (1868)  8  Wall. 
(U.  S.)  168;  Philadelphia  Fire  Assoc.  v.  New  York,  (1886)  119 
U.  S.  110;  Pembina  Consol.  Silver  Min.,  etc.,  Co.  V.  Pennsylvania, 
(1888)  125  U.  S.  181;  Orient  Ins.  Co.  v.  Daggs,  (1899)  172  U.  S. 
561. 

"A  grant  of  corporate  existence  is  a  grant  of  special  privileges 
to  the  corporators,  enabling  them  to  act  for  certain  designated  pur- 
poses as  a  single  individual,  and  exempting  them  (unless  otherwise 
specially  provided)  from  individual  liability.  The  corporation,  being 
the  mere  creation  of  local  law,  can  have  no  legal  existence  beyond 
the  limits  of  the  sovereignty  where  created.  ...  It  must  dwell 
in  the  place  of  its  creation,  and  cannot  migrate  to  another  sover- 
eignty." Paul  v.  Virginia,  (1868)  8  Wall.  (U.  S.)  181. 

7  Anglo-American  Provision  Co.  v.  Davis  Provision  Co.,  (  1903  ) 
191  U.  S.  373. 


CITIZENSHIP 


under  Amendment  XIV  than  as  against  its  right  as    Chapter 
the  citizen  of  another  State.8  ' 

A  State  law  admitting  a  foreign  corporation  to 
do  business  in  the  State  on  the  condition  that  cred- 
itors who  were  residents  of  the  State  granting  the 
permit  should  have  priority  in  the  distribution  of 
its  assets  over  nonresident  creditors  was  likewise 
held  to  violate  the  constitutional  guarantee  against 
discrimination.9  It  was  said,  in  one  of  the  cases, 
that  the  only  limit  of  the  State's  right  to  exclude 
foreign  corporations  is  where  they  are  employed  by 
the  Federal  government  or  are  strictly  engaged  in 
interstate  or  foreign  commerce.1 

A  State  law  which  imposes  a  tax  upon  resident  . 

-1-  mating  in 

merchants  at  one  rate,  and  another  tax  upon  non- 

s Home  Ins.  Co.  v.  Morse,  (1874)  20  Wall.  (U.  S.)  445; 
Doyle  v.  Continental  Ins.  Co.,  (1876)  94  U.  S.  535;  Barren  17. 
Burnside,  (1887)  121  U.  S.  186. 

"The  Constitution  of  the  United  States  declares  that  the  ju- 
dicial power  of  the  United  States  shall  extend  to  all  cases  in 
law  and  equity  arising  under  that  Constitution,  the  laws  of  the 
United  States,  and  to  the  treaties  made  or  which  shall  be  made 
under  their  authority,  ...  to  controversies  between  a  State 
and  citizens  of  another  State,  and  between  citizens  of  different 
States.  The  jurisdiction  of  the  Federal  courts,  under  this  clause 
of  the  Constitution,  depends  upon  and  is  regulated  by  the  laws  of 
the  United  States.  State  legislation  cannot  confer  jurisdiction 
upon  the  federal  courts,  nor  can  it  limit  or  restrict  the  authority 
given  by  Congress  in  pursuance  of  the  Constitution."  Home  Ins. 
Co.  v.  Morse,  (1874)  20  Wall.  (U.  S.)  453. 

» Blake  v.  McClung,  (1898)  172  U.  S.  239,  where  the  court 
said:  "Although,  generally  speaking,  the  State  has  the  power 
to  prescribe  the  conditions  upon  which  foreign  corporations  may 
enter  its  territory  for  purposes  of  business,  such  a  power  cannot 
be  exerted  with  the  effect  of  defeating  or  impairing  rights  se- 
cured to  citizens  of  the  several  States  by  the  supreme  law  of  the 
land." 

iPembina  Consol.  Silver  Min.,  etc.,  Co.  V.  Pennsylvania, 
(1888-)  125  U.  S.  181. 


170  CITIZENSHIP 


Chapter  residents,  for  the  privilege  of  transacting  the  same 
'  character  of  business,  at  a  higher  or  discriminat- 
ing rate,  is  a  violation  of  the  provision  we  are 
discussing.2 

statutes  In  some  of  the  cases  which  have  been  decided  the 

assailed  on 

State  law  has  been  assailed  on  the  double  ground 
that  it  discriminated  against  citizens  of  other  States 
and  was  regulative  of  interstate  commerce.  The 
decisions  rendered  have  in  some  instances  held  the 
law  to  be  unconstitutional  on  the  latter  ground  and 

2  Ward  v.  Maryland,  (1870)  12  Wall.  (U.  S.)  419;  Guy  v. 
Baltimore,  (1879)  100  U.  S.  434;  Walling  v.  Michigan,  (1886) 
116  U.  S.  446. 

"  No  State  can,  consistently  with  the  Federal  Constitution, 
impose  upon  the  products  of  other  States,  brought  therein  for 
sale  or  use,  or  upon  citizens  because  engaged  in  the  sale  therein, 
or  the  transportation  thereto,  of  the  products  of  other  States, 
more  onerous  public  burdens  or  taxes  than  it  imposes  upon  the 
like  products  of  its  own  territory.  If  this  were  not  so,  it  is 
easy  to  perceive  how  the  power  of  Congress  to  regulate  com- 
merce with  foreign  nations  and  among  the  several  States  could 
be  practically  annulled,  and  the  equality  of  commercial  privileges 
secured  by  the  Federal  Constitution  to  citizens  of  the  several 
States  be  materially  abridged  and  impaired."  Guy  V.  Baltimore, 
(1879)  100  U.  S.  439. 

"  Grant  that  the  States  may  impose  discriminating  taxes 
against  the  citizens  of  other  States,  and  it  will  soon  be  found 
that  the  power  conferred  upon  Congress  to  regulate  interstate 
commerce  is  of  no  value,  as  the  unrestricted  power  of  the  States 
to  tax  will  prove  to  be  more  efficacious  to  promote  inequality 
than  any  regulations  which  Congress  can  pass  to  preserve  the 
equality  of  right  contemplated  by  the  Constitution  among  the 
citizens  of  the  several  States.  Excise  taxes,  it  is  everywhere 
conceded,  may  be  imposed  by  the  States,  if  not  in  any  sense  dis- 
criminating; but  it  should  not  be  forgotten  that  the  people  of 
the  several  States  live  under  one  common  Constitution,  which 
was  ordained  to  establish  justice,  and  which,  with  the  laws  of 
Congress,  and  the  treaties  made  by  the  proper  authority,  is  the 
supreme  law  of  the  land;  and  that  that  supreme  law  requires 
equality  of  burden,  and  forbids  discrimination  in  State  taxation 
when  the  power  is  applied  to  the  citizens  of  the  other  States. 


CITIZENSHIP 


have  ignored  the  former,  although  it  was  apparently    chapter 
equally  tenable.3  I  ' 

Under  the  decision  in  the  famous  Dred  Scott  case 
a  free  negro  whose  ancestors  were  brought  to  this 
country  and  sold  as  slaves  was  held  not  to  be 
a  "citizen"  in  the  sense  that  the  word  was  used 
in  the  Constitution.  Bitterly  as  this  decision  was 
assailed  at  the  time  it  was  rendered,  its  logic  was  un- 
answerable as  the  law  then  stood.  This  has  been 
changed  by  the  XIII,  XIV,  and  XV  Amendments, 
and  it  has  been  frequently  said  in  the  decisions  upon 
those  amendments  that  they  were  passed  in  order  to 
reverse  this  ruling. 

There  are,  however,  sundry  things  concerning 


which  States  may  legislate  discriminating  between  Joatimarit3 
residents  and  nonresidents.  One  of  the  earliest  of  nghts 
these  decisions  was  that  marital  rights  of  a  spe- 
cial nature,  bestowed  by  a  State  upon  its  own 
citizens  residing  within  its  borders,  do  not  accrue 
to  the  nonresident  widow  of  a  deceased  nonresident 
husband  who  owned  property  in  that  State.  It 
was  held  that  such  rights  were  attached  to  the  con- 
tract of  marriage  in  cases  in  which  the  State  con- 
trolled it  and  were  not  of  the  class  of  personal  rights 
of  a  citizen  intended  by  this  clause  of  the  Con- 
stitution.4 

Inequality  of  burden,  as  well  as  the  want  of  uniformity  in  com- 
mercial regulations,  was  one  of  the  grievances  of  the  citizens 
under  the  Confederation;  and  the  new  Constitution  was  adopted, 
among  other  things,  to  remedy  those  defects  in  the  prior  system." 
Ward  v.  Maryland,  (1870)  12  Wall.  (U.  S.)  430. 

sCorson  v.  Maryland,  (1887)   120  U.  S.  502. 

*  Conner  v.  Elliott,   (1885)    18  How.    (U.  S.)    591. 

"According  to  the  express  words  and  clear  meaning  of  this 
clause,  no  privileges  are  secured  by  it,  except  those  which  belong 


CITIZENSHIP 


Chapter         A  State  tax  on  shares  of  nonresidents  in  a  cor- 

1 poration  of  Connecticut,  on  a  basis  different  from 

Taxing       that  on  which  residents  were  taxed,  was,  under  the 

corporate 

peculiar  tax  laws  of  Connecticut,  held  not  to  be  a 
discrimination.5 

of  "actioS  ^n(^  a  State  ^aw  savmg  the  statute  of  limitations 
to  a  resident  plaintiff  against  an  absent  defendant, 
but  allowing  it  to  run  against  a  nonresident  plain- 
tiff, has  been  held  not  to  discriminate  against  the 
citizen  of  another  State  within  the  meaning  of  this 
clause.  It  was  held  to  be  a  change  of  remedy  and 
not  the  deprivation  of  a  right.6 

laws!6  ^n  a°t  °^  a  State  legislature  granting  exclusive 

privileges  for  twenty-five  years  to  maintain  within 
a  designated  area  a  slaughter-house,  landings  for 
cattle,  and  yards  for  enclosing  cattle  intended  for 
sale  or  slaughter,  and  prohibiting  all  others,  was 
held  to  be  within  the  police  power  of  the  State,  un- 
affected by  the  Federal  Constitution  or  its  amend- 
to  citizenship.  Rights,  attached  by  the  law  to  contracts  by  rea- 
son of  the  place  where  such  contracts  are  made  or  executed,  wholly 
irrespective  of  the  citizenship  of  the  parties  to  those  contracts, 
cannot  be  deemed  'privileges  of  a  citizen,'  within  the  meaning  of 
the  Constitution."  Conner  v.  Elliott,  (1855)  18  How.  (U.  S.)  593. 

s  Travellers'  Ins.  Co.  v.  Connecticut,  (1902)  185  U.  S.  364.  See 
also  Eldridge  v.  Trezevant,  (1896)  160  U.  S.  452. 

In  passing  upon  the  constitutionality  of  tax  laws,  the  court 
"  can  only  consider  the  legislation  that  has  been  had,  and  deter- 
mine whether  or  no  its  necessary  operation  results  in  an  unjust 
discrimination  between  the  parties  charged  with  its  burdens.  It  is 
enough  that  the  State  has  secured  a  reasonably  fair  distribution 
of  burdens,  and  that  no  intentional  discrimination  has  been  made 
against  nonresidents.  .  .  .  Perfect  equality  and  perfect  uni- 
formity of  taxation  as  regards  individuals  or  corporations,  or  the 
different  classes  of  property  subject  to  taxation,  is  a  dream  un- 
realized." Travellers'  Ins.  Co.  v.  Connecticut,  (1902)  185  U.  S.  364. 

eChemung  Canal  Bank  v.  Lowery,   (1876)  93  U.  S.  72. 


CITIZENSHIP 


ments,  and  to  be  a  regulation  for  the  health  and    chapter 

comfort  of  the  people.7    A  law  of  the  State  of  Iowa  * — 

making  persons  liable  for  any  damages  accruing 
from  their  allowing  cattle  from  Texas  to  run  at  large 
and  spread  a  disease  known  as  Texas  fever  was  held 
to  work  no  discrimination,  and  to  be  within  the 
police  powers  of  the  State.8  A  similar  law  against 
introducing  diseased  live  stock  into  Colorado  was 
upheld.9  In  the  case  of  Rasmussen  v.  Idaho /  the 
proclamation  of  the  governor  of  Idaho  forbidding 
the  introduction  from  other  States  of  sheep  with  scab 
was  held  to  be  no  discrimination  against  other  States 
and  a  legitimate  exercise  of  the  police  powers  of 
the  State. 

State  laws  forbidding  nonresidents  from  fishing 
or  hunting  within  the  limits  of  the  State,  or  pre- 
scribing terms  upon  which  they  may  do  so,  have 
been  upheld  as  constitutional,  on  the  ground  that 
the  States  never  surrendered  to  the  Federal  gov- 
ernment any  of  their  rights  touching  fishing  or  hunt- 
ing; that  the  fish  or  game  of  the  State  is  a  part 
of  the  food  supply  of  the  citizens,  in  which  the  citi- 
zens of  other  States  have  no  interest  or  personal 
rights  or  privileges;  and  that  a  State  may  control 
the  subject  in  the  exercise  of  its  police  power,2  and 
as  a  thing  held  in  trust  for  its  own  people. 

7  Slaughter-House  Cases,  (1872)    16  Wall.   (U.  S.)  36. 

sKimmish  v.  Ball,   (1889)   129  U.  S.  217. 

9  Reid  v.  Colorado,  (1902)  187  U.  S.  137. 

i  (1901)   181  U.  S.  198. 

aMcCready  v.  Virginia,  (1876)  94  U.  S.  391;  Geer  v.  Connecticut, 
(1896)  161  U.  S.  519;  Manchester  V.  Massachusetts,  (1891)  139 
U.  S.  240;  Lawton  v.  Steele,  (1894)  152  U.  S.  133. 

An  appropriation  by  the  State  of  "its  tide  waters  and  their  beds 
to  be  used  by  its  people  as  a  common  for  taking  and  cultivating  fish, 


CITIZENSHIP 


chapter       The  question  of  the  right  of  the  State  to  inspect 
'      meat  and  provision  and  other  food  supplies,  and  her 


to  regulate  the  liquor  traffic,  is  the  subject  of 
ofsiiqaui°rn  &  number  of  the  decisions  hereinafter  considered, 
but  in  those  cases  decided  adversely  to  the  State  the 
decision  has  been  placed  either  upon  the  interstate 
commerce  clause  or  upon  the  rights  asserted  under 
the  XIV  Amendment,  and  they  will  be  found  under 
the  discussion  of  the  latter  subject. 

Of  the  Federal  Guarantee  of  Extradition  of  Fugi- 
tives from  Justice  (Right  42  above). 


of  nd  Pursuant  to  this  obligation  the  Congress  has  en- 
acted statutes  providing  for  the  extradition  from  one 
State  to  another  of  fugitives  from  justice.  These 
Federal  statutes  control  the  demand,  and  statutes 
have  been  passed  in  all  the  States  providing  meas- 
ures in  accordance  with  the  Federal  laws.  In  the 
first  case  of  extradition  presented  to  the  Supreme 
Court,  the  prisoner  was  indicted  in  Canada  and  req- 
uisition was  made  by  the  Canadian  government  on 
the  governor  of  Vermont,  who  undertook  to  deliver 
him.  He  applied  for  a  habeas  corpus  on  the  ground 
that  such  a  delivery  could  only  be  made  to  a 
foreign  government  on  a  requisition  upon  the  United 
States,  and  that  the  United  States  would  not,  as 
had  been  shown  by  its  action  in  another  case,  honor 

so  far  as  it  may  be  done  without  obstructing  navigation,  .  .  . 
is  in  fact  nothing  more  than  a  regulation  of  the  use  by  the  people  of 
their  common  property.  The  right  which  the  people  of  the  State 
thus  acquire  comes  not  from  their  citizenship  alone,  but  from  their 
citizenship  and  property  combined.  It  is,  in  fact,  a  property  right, 
and  not  a  mere  privilege  or  immunity  of  citizenship."  McCready  V. 
Virginia,  (1876)  94  U.  S.  395. 


CITIZENSHIP  175 


the  requisition  because  there  was  no  treaty.     The    chapter 

Vermont  court  dismissed  the  writ,  and  the  Supreme  '. 

Court,  by  a  divided  court,  sustained  the  action  of  the 
State  court.3  In  another  case  it  was  held  to  be  the 
duty  of  the  governor  of  one  State,  on  the  demand 
of  the  governor  of  another  State,  and  the  production 
of  the  indictment,  duly  certified,  to  deliver  up  a  fugi- 
tive from  justice;  that  the  function  of  the  former  is 
merely  ministerial,  and  that  he  has  no  right  to  exer- 
cise any  discretionary  power;  that  he  is  under 
moral  obligation  to  perform  the  compact  of  the  Con- 
stitution, Congress  having  regulated  the  manner  of 
performance;  but  that  no  law  of  Congress  could 
coerce  a  State  officer  to  perform  his  duty,  and  a 
motion  for  a  mandamus  against  the  governor 
was  denied.4  And  again  it  was  held  that  the  Fed- 
eral statute  demanding  surrender  of  a  fugitive  from 
justice  found  in  one  of  the  States  or  Territories,  to 
the  State  in  which  he  stands  accused,  applies  to  Ter- 
ritories as  well  as  States  and  embraces  every  offense 
known  to  the  law,  including  misdemeanors.5 

s  Holmes  V.  Jennison,   (1840)    14  Pet.   (U.  S.)  540. 

4  Kentucky  v.  Dennison,  (1860)  24  How.  (U.  S.)  66. 

5  Ex  p.  Reggel,   (1885)   114  U.  S.  642. 

"Looking  ...  to  the  words  of  the  Constitution  —  to  the 
obvious  policy  and  necessity  of  this  provision  to  preserve  harmony  ' 
between  States,  and  order  and  law  within  their  respective  borders, 
and  to  its  early  adoption  by  the  colonies,  and  then  by  the  confed- 
erated States,  whose  mutual  interest  it  was  to  give  each  other  aid 
and  support  whenever  it  was  needed  —  the  conclusion  is  irresistible, 
that  this  compact  engrafted  in  the  Constitution  included,  and  was 
intended  to  include,  every  offense  made  punishable  by  the  law  of  the 
State  in  which  it  was  committed,  and  that  it  gives  the  right  to  the 
executive  authority  of  the  State  to  demand  the  fugitive  from  the  ex- 
ecutive authority  of  the  State  in  which  he  is  found;  that  the  right 
given  to  'demand'  implies  that  it  is  an  absolute  right;  and  it  follows 
that  there  must  be  a  correlative  obligation  to  deliver,  without  any 


176  CITIZENSHIP 


chapter         in  one  case  a  man  charged  with  crime  in  Ken- 

IV 

tucky  fled  to  West  Virginia.  A  requisition  issued 
for  him.  While  the  governor  of  West  Virginia  was 
considering  his  extradition  the  man  was  seized  in 
West  Virginia,  forcibly  abducted  to  Kentucky,  and 
there  held  for  trial.  He  instituted  proceedings 
seeking  to  have  himself  returned  to  West  Virginia. 
The  Supreme  Court  held  that  there  was  no  mode 
provided  by  the  Constitution  or  laws  of  the  United 
States,  by  which  Federal  authority  could  restore  him 
to  West  Virginia.6 

And  a  fugitive  returned  to  a  demanding  State 
charge,  has  no  immunity  from  other  indictments  against 
another,  him  by  the  State  from  which  he  fled,  after  he  is 
returned.7  But  the  Supreme  Court  has  said  that 
to  extradite  a  man  on  one  charge  and  try  him  on 
another  is  dishonorable.8  The  governor  of  a  State, 
upon  whom  demand  is  made  for  the  surrender  to  an- 
other State  of  a  citizen  who  is  charged  with  being 
a  fugitive  from  justice,  may  refuse  the  requisition 
if  it  be  satisfactorily  shown  to  him  that  the  accused 
was  not  in  the  State  at  the  time  the  alleged  offense 

reference  to  the  character  of  the  crime  charged,  or  to  the  policy  or 
laws  of  the  State  to  which  the  fugitive  has  fled."  Kentucky  v.  Den- 
nison,  (1860)  24  How.  (U.  S.)  103. 

eMahon  v.  Justice,  (1888)   127  U.  S.  700. 

TLascelles  v.  Georgia,  (1893)  148  U.  S.  537;  Roberts  V.  Reilly, 
(1885)  116  U.  S.  80;  12  Am.  and  Eng.  Encyc.  of  Law  (2d  ed.)  606. 

"  It  is  settled  by  the  decisions  of  this  court  that,  except  in  the 
case  of  a  fugitive  surrendered  by  a  foreign  government,  there  is 
nothing  in  the  Constitution,  treaties  or  laws  of  the  United  States 
which  exempts  an  offender,  brought  before  the  courts  of  a  State  for 
an  offence  against  its  laws,  from  trial  and  punishment,  even  though 
brought  from  another  State  by  unlawful  violence,  or  by  abuse  of 
legal  process."  Lascelles  v.  Georgia,  (1893)  148  U.  S.  543. 

»U.  S.  V.  Rauscher,   (1886)   119  U.  S.  407. 


CITIZENSHIP  177 


was  committed,  or  since,  for  in  that  case  the  fact  that    Chapter 
he  fled  from  justice  is  negatived.9  _J 


From  the   foundation  of  the  government  and  Determina- 
tion of 

notwithstanding  the  absolute  power  of  Congress  to 
regulate  the  terms  of  surrender  of  fugitives,  the  gov-  r 
ernors  of  States  have  been  disposed  to  show  inde- 
pendence on  this  subject  of  honoring  requisitions. 
In  the  days  of  slavery  it  was  difficult  to  secure  the 
surrender  of  fugitive  slaves,  and  impossible  to  se- 
cure the  surrender  of  persons  charged  in  a  slave 
State  with  having  aided  slaves  to  escape  and  having 
then  themselves  fled.  The  case  of  Kentucky  v.  Den- 
nison 9*  is  an  illustration  in  point.  In  some  States 
the  executive,  before  honoring  the  requisition  of 
the  governor  of  the  demanding  State,  claims  the 
right  to  examine  the  indictment  upon  which  the 
demand  is  based,  and  to  determine  whether  it  is 
in  due  form,  or  to  decide  whether  it  charges  an 
offense  punishable  under  the  laws  of  the  demanding 
State,  which  is  equivalent  to  deciding  a  demurrer  to 
the  indictment ;  and  even  to  hear  testimony  to  deter- 
mine the  question  of  probable  guilt  or  innocence.  A 
notable  instance  of  this  is  the  case  of  a  recent 
governor,  indicted  for  complicity  in  the  murder  of 
his  political  rival,  who,  having  fled  first  to  one  and 
then  to  another  State,  was  demanded  by  the  authori- 
ties of  the  State  from  which  he  fled,  of  the  authori- 
ties of  both  States  in  which  he  sought  asylum, 
but  has  been  protected  from  delivery.  Perhaps,  in 
the  instance  cited,  it  was  best  so,  but  the  better 
opinion  is  that  if  a  crime  is  charged  and  demand  is 

»  People  v.  Hyatt,  (1902)  72  N.  Y.  176,  and  cases  cited. 
»*  (1860)  24  How.  (U.  S.)   103. 
12 


178  CITIZENSHIP 


Chapter  made,  in  due  form,  accompanied  by  an  exemplified 
IV>  copy  of  the  indictment,  the  duty  of  the  executive 
upon  whom  the  demand  is  made  is  to  surrender  the 
accused  to  the  demanding  State,  whether  he  may 
think  him  properly  or  improperly  indicted,  innocent 
or  guilty,  leaving  the  questions  of  the  sufficiency  of 
the  indictment  and  his  guilt  or  innocence  to  be  deter- 
mined by  the  lawfully  constituted  authorities  of  the 
demanding  State  upon  his  trial  there.1 

The  Guarantee  to  the  Citizen  that  Persons  Held  to 
Service  or  Labor  in  One  State  and  Escaping  to 
Another  Shall  Not  be  Discharged  Thereby  from 
Such  Service  or  Labor  but  Shall  be  Delivered 
Up  (Right  43  above). 

tiontrto"  This  once  exciting  clause  has,  since  the  abolition 

slavery.       o£  g}avery?  ceased  to  possess  much  practical  impor- 

tance.   It  may  be  left,  with  the  authorities  cited  in 

connection  with  it,  to  the  study  of  those  interested 

in  the  controversies  to  which  slavery  gave  rise. 

Of  the  Federal  Guarantee  to  the  Citizen  that  His 
State  Shall  Have  a  Republican  Form  of  Govern- 
ment (Right  44  above). 


Rebellion  ^  ^e  ^rst  case  ^n  wn^c^  the  Supreme  Court  was 
called  upon  to  enforce  this  guarantee  it  decided  that 
the  question  which  of  two  rival  governments  exist- 
ing in  a  State  was  the  lawful  government  of  the 
State  was  not  a  judicial  but  a  political  question; 
that  is,  that  it  was  to  be  decided  by  the  legislative 
and  executive  departments  and  not  by  the  judiciary. 
The  case  arose  out  of  conditions  bordering  upon 

iPearce  v.  Texas,  (1894)  155  U.  S.  311. 


CITIZENSHIP  179 


civil  war  in  the  State  of  Ehode  Island  in  1842,  re-  chapter 
suiting  from  an  attempt  of  certain  citizens  of  that  ' 
State  to  change  the  organic  law  of  Ehode  Island 
from  government  under  a  charter  granted  by  Charles 
II,  which  it  had  continued  as  its  form  of  government 
after  the  Bevolution,  to  government  under  a  new 
constitution  framed  by  the  people.  The  trouble 
originated  in  the  fact  that  while  it  was  alleged  that  a 
majority  of  the  people  desired  a  new  constitution, 
there  was  no  provision  in  the  existing  law  for  the 
calling  of  any  convention.  The  charter  government 
continued,  notwithstanding  certain  people  assembled 
and  framed  and  attempted  to  put  into  operation  a 
new  government.  One  Dorr  was  chosen  governor 
by  the  adherents  of  the  new  government,  and  at  once 
came  in  conflict  with  the  old  regime.  The  dispute 
was  popularly  known  as  "Dorr's  Rebellion,"  and 
the  situation  soon  led  to  military  conflict,  the  arrest, 
trial,  and  conviction  of  Dorr,  and  his  sentence  to 
imprisonment  for  life  (although  he  was  subsequently 
pardoned).  In  the  excitement  the  Federal  judi- 
ciary was  appealed  to,  and  to  the  appeal  it  gave 
the  above  reply. 

The  Federal  executive  and  other  departments  had 
held  intercourse  with  the  old  government  and  so  con- 
tinued  to  recognize  it,  and,  although  neither  of  the 
State  governments  could,  as  they  were  administered 
then,  be  said  to  be  a  republican  government,  under 
the  decision  that  it  was  a  political  question,  to  be 
disposed  of  by  Congress,  the  factions  in  Ehode  Is- 
land were  allowed  to  flounder  on,  and  finally  un- 
tangle their  troubles  for  themselves  without  Federal 
interference.  So  in  that  instance  this  Federal  guar- 


180  CITIZENSHIP 


chapter    antee  of  a  republican  government  proved  to  be  not 
'       a  very  practical  thing.2 


The  seces-        The  next  occasion  upon  which  the  Supreme  Court 

sion  of 

considered  this  Federal  guarantee  was  after  the 
great  Civil  War.  The  State  of  Texas  attempted,  in 
1861,  to  secede.  Her  government  and  her  people 
waged  war  on  the  United  States  for  four  years.  In 
1865  she  was  overcome  by  force  of  arms,  and  her 
territory  was  occupied  by  the  military  forces  of  the 
United  States,  and  her  government  was  temporarily 
administered  by  provisional  appointees  of  the  Presi- 
dent of  the  United  States  and  afterwards  by  govern- 
ors appointed  under  an  act  of  Congress,  by  a  mili- 
tary commander,  Texas  being  a  part  of  Military 
District  No.  5,  composed  of  Texas  and  Louisiana, 
pursuant  to  an  Act  of  Congress  of  March,  1867.  A 
State  convention,  assembled  under  the  authority  of 
the  United  States  in  1866,  passed  an  ordinance  look- 
ing to  the  recovery  of  certain  bonds  alleged  to  belong 
to  the  State,  and  one  J.  W.  Throckmorton,  a  gov- 

2  Luther  v.  Borden,  (1849)  7  How.  (U.  S.)  1. 

"Under  this  article  of  the  Constitution  it  rests  with  Congress  to 
decide  what  government  is  the  established  one  in  a  State.  For  as 
the  United  States  guarantee  to  each  State  a  republican  government, 
Congress  must  necessarily  decide  what  government  is  established  in 
the  State  before  it  can  determine  whether  it  is  republican  or  not. 
And  when  the  senators  and  representatives  of  a  State  are  admitted 
into  the  councils  of  the  Union,  the  authority  of  the  government 
under  which  they  are  appointed,  as  well  as  its  republican  character, 
is  recognized  by  the  proper  constitutional  authority.  And  its  deci- 
sion is  binding  on  every  other  department  of  the  government,  and 
could  not  be  questioned  in  a  judicial  tribunal.  .  .  .  So,  too,  as 
relates  to  the  clause  in  the  above-mentioned  article  of  the  Constitu- 
tion, providing  for  cases  of  domestic  violence.  It  rested  with  Con- 
gress, too,  to  determine  upon  the  means  proper  to  be  adopted  to 
fulfil  this  guarantee.  They  might,  if  they  had  deemed  it  most  ad- 
visable to  do  so,  have  placed  it  in  the  power  of  a  court  to  decide 


CITIZENSHIP 


ernor  whom  that  convention  had  elected,  authorized    Chapter 
the  bringing  of  the  suit.    Two  subsequent  military  ' 

governors,  Hamilton  and  Pease,  further  ratified  this 
action.  The  bill  was  an  original  bill  filed  by  Texas 
as  a  State  in  the  Supreme  Court,  and  while  this  con- 
dition of  her  statehood  continued  it  prayed  an  in- 
junction concerning  certain  bonds  and  their  delivery 
to  the  State.  The  defense,  among  other  things, 
questioned : 

1.  The  authority  of  the  parties  named  to  prose- 
cute a  suit  in  the  name  of  Texas. 

2.  The  right  of  Texas,  after  her  course  in  the 
Civil  War,  to  sue  as  a  State  of  the  Union. 

It  fell  to  the  lot  of  Chief  Justice  Chase  to  decide  status  of 

seceding 

the  status  of  the  States  which  had  attempted  to  f^S3  — 
secede,  after  they  were  conquered  by  the  United  * 
States  and  before  they  were  fully  restored  to  their 
relations  as  States  of  the  Union.    In  a  great  opinion 
the  following  points  were  decided : 

1.  That  the  term  State,  as  used  in  the  Constitu- 
tion, most  frequently  expresses  the  combined 
idea  of  people,  territory,  and  government; 
a  political  community  of  free  citizens, 
occupying  a  territory  of  defined  bound- 
aries, and  organized  under  a  government 
sanctioned  and  limited  by  a  written  consti- 
tution, and  established  by  the  consent  of  tlie 
governed. 

when  the  contingency  had  happened  which  required  the  Federal 
government  to  interfere.  But  Congress  thought  otherwise,  and  no 
doubt  wisely;  and  by  the  Act  of  February  28,  1795,  ...  the 
power  of  deciding  whether  the  exigency  had  arisen  upon  which  the 
government  of  the  United  States  is  bound  to  interfere,  is  given  to 
the  President."  Luther  v.  Borden,  (1849)  7  How.  (U.  S.)  1. 


182  CITIZENSHIP 


chapter  2.     That  the  Union  of  these  States  under  a  com- 

IV 

mon  Constitution,  forming  a  distinct  and 
greater  political  unit,  is  that  which  was  des- 
ignated by  the  Constitution  as  the  United 
States,  and  made,  of  the  people  and  States 
composing  it,  one  people  and  one  country. 

3.  That  the  guarantee  to  every  State  of  a  re- 
publican form  of  government  was  a  guaran- 
tee to  the  people  of  that  State. 

4.  That  the  Union  was  indissoluble. 

5.  That  the   States  nevertheless  possessed  a 
right  of  self-government,  sovereignty,  free- 
dom, and  independence,  and  every  power, 
jurisdiction,  and  right  not  expressly  or  by 
fair   implication   delegated   to   the   Union; 
that  without  the  States  in  union  there  could 
be  no   such  political  body  as  the  United 
States. 

6.  That  the  preservation  and  the  maintenance 
of  their  governments  was  as  much  within  the 
care  of  the  Federal  authority  as  was  the 
preservation    of   the   national    government 
itself. 

7.  That  the  United  States  was  an  indestructible 
government  of  indestructible  States. 

8.  That  the  guarantee  of  republican  govern- 
ment in  the  Union,  to  the  State,  was  as  bind- 
ing on  the  United  States  as  the  guarantee  of 
perpetual  union,  and  that  Texas  was  en- 
titled to  the  performance  of  that  guarantee 
by  the  final  act  whereby  she  became  a  new 
member  of  the  Union. 


CITIZENSHIP  183 


9.     That  her  attempt  at  secession  and  all  acts    chapter 
intended  to  give  it  effect  were  null. 

10.  That  the  State  continued  to  exist  as  a  mem- 
ber of  the  Union,  notwithstanding  its  tem- 
porary government  had  been  destroyed  to 
preserve  the  Union. 

11.  That  the  United  States,  having  preserved 
its  own  existence,  was  engaged  in  perform- 
ing its  equally  sacred  obligation  to  provide 
a    republican  form  of  government  to  the 
State. 

12.  That  this  was  a  political  guarantee  to  be 
performed  by  the  Congress. 

13.  That  Congress  was  empowered  to  judge  of 
the  ways  and  means  of  accomplishing  that 
result,  and  the  provisional  and  temporary 
military   governments    then    existing   were 
lawful  means  to  that  end  in  a  case  in  which 
the  hostile  State  government  had  been  de- 
stroyed, and  until  new  and  loyal  republican 
State  governments  could  be  organized. 

14.  That  it  behooved  the  judiciary  to  recognize 
the  continual  existence  of  the  seceding  States 
as  members  of  the  Union,  notwithstanding 
the  temporary  suspension  of  their  relations 
to  the  Union  by  the  force  of  the  events  above 
referred  to. 

No  epitome  of  this  great  decision  can  do  it  justice. 
It  is  among  the  most  luminous  expositions  extant 
of  the  vital  questions  of  which  it  treats,  and  was  fol- 
lowed thenceforth  in  every  department  of  the  gov- 
ernment.3 

3  Texas  v.  White,  (1868)  7  Wall.  (U.  S.)  700. 


184  CITIZENSHIP 


Chapter         jn  a  later  case  the  point  was  made  that  the  form 

IV 

'       of  government  of  a  State  was  not  republican  in  the 


sense  guaranteed  by  the  Constitution;  that  is  to 
say,  that  certain  State  statutes  in  the  frame  and  exe- 
cution were  not.  The  Supreme  Court  reiterated 
that  the  question  was  a  political  question,  and  that 
if  the  "form  of  government"  existing  in  a  State 
was  recognized  by  the  legislative  and  executive  de- 
partments, the  judiciary  ought  not  to  question  it, 
and  must  follow  the  interpretations  of  the  State  laws 
placed  on  them  by  the  highest  State  court.4 

B^kham  In  a  very  recent  case  the  Supreme  Court,  called 

upon  to  decide  upon  the  case  of  rival  contestants  for 
the  office  of  governor  of  a  State,  declined  to  do  so, 
declaring  that  it  was  preeminently  a  case  for  de- 
cision by  the  court  of  last  resort  in  the  State.  When 
the  Federal  guarantee  of  a  republican  form  of  gov- 
ernment, and  the  XIV  Amendment  were  invoked, 
it  dismissed  the  contention  by  declaring  that  the  en- 
forcement of  that  guarantee  was  intrusted  to  the 
political  department  of  the  government,  and  that 
the  powers  of  the  judiciary  concerning  it  were  not 
so  enlarged  by  anything  in  the  XIV  Amendment  as 
to  give  the  court  power  to  review  the  judgment  of 
a  State  court  of  last  resort  on  a  question  of  State 
elections.5 

men?Teeft  From  the  foregoing,  which  embrace  all  the  utter- 
ances of  the  Supreme  Court  concerning  its  powers 
under  the  guarantee  clause,  it  will  be  seen  that  the 
citizen  has  little  or  nothing  to  hope  for,  in  the  way  of 
its  enforcement,  from  the  Federal  judiciary.  In- 

4/n  re  Duncan,   (1891)    139  U.  S.  449. 

5  Taylor  v.  Beckham,   (1900)   178  U.  S.  548. 


CITIZENSHIP  185 


deed,  judging  by  the  recent  utterances  of  that  court,    chapter 

not  only  in  this  regard,  but  on  the  subject  of  extra- '- — 

dition,6  and  in  numerous  cases  where  attempts  have 
been  made  to  secure  its  aid  against  gross  frauds  on 
the  suffrage,7  it  would  seem  to  be  willing  to  sur- 
render its  existence  and  power  as  a  coordinate  de- 
partment of  the  Federal  government,  and  gladly 
abandon  to  Congress  and  the  executive  all  efforts 
to  enforce  the  law,  except  in  matters  not  political. 

We  come  now  to  consider  those  rights,  privileges, 
and  immunities  of  the  citizen  guaranteed  by  the 
early  amendments  to  the  Constitution. 

The  Immunity  of  the  Citizen  Against  Any  Law  of 
Congress  Respecting  an  Establishment  of  Re- 
ligion or  Prohibiting  the  Free  Exercise  Thereof. 
(Amendment  I.) 

Either  by  the  bill  of  rights,  the  constitution,  or 
the  law,  of  every  State  of  the  Union,  a  similar 
guarantee  is  given  to  its  citizens,  concerning  State 
laws.  This  does  not  mean  that  the  people  either 
of  the  Nation  or  of  the  State  hold  religion  in 
contempt  or  desire  to  belittle  it.  On  the  contrary, 
the  oldest  of  the  bills  of  rights  contains  reverential 
references  to  religion  or  the  duty  which  we  owe  to 
our  Maker.  The  Christian  religion  was  judicially 
declared  to  be  a  part  of  the  common  law  of  Pennsyl- 
vania.8 But  the  English  Established  Church  had  be- 
come exceedingly  obnoxious  to  the  colonists,  and 

e  Kentucky  v.  Dennison,   (1860)  24  How.   (U.  S.)   103. 

7  Williams  v.  Mississippi,  (1898)  170  U.  S.  213;  Green  v.  Mills, 
(C.  C.  A.  1895)  69  Fed.  Rep.  852,  159  U.  S.  651;  Giles  V.  Harris, 
(1903)  189  U.  S.  486. 

sVidal  v.  Philadelphia,   (1844)  2  How.   (U.  S.)   193, 


Provision 
not  inim- 


CITIZENSHIP 


Chapter    their  ideas  of  religious  liberty  had  been  imbibed 
IV>      from  Dutch  and  Lutheran  examples,  and  stimulated 
by  what  they  regarded  as  oppressions  of  the  regu- 
larly established  Church.     Hence  the  prohibition 
above  set  forth.9 

The  first  case  arising  under  this  clause  involved 

property.  ^  ef£ect  of  the  constitutions,  national  and  State,  and 
laws  enacted  thereunder,  upon  property  of  the  Epis- 
copal Church  in  Virginia.  The  case  arose  touching 
certain  church  property  in  Alexandria,  which  city 
was  at  that  time  in  the  District  of  Columbia.  The 
court  held  that  the  religious  establishment  of  Eng- 
land was  adopted,  so  far  as  applicable,  in  the  colony 
of  Virginia,  and  that  the  freehold  of  church  lands 
was  in  the  parson ;  that  legislative  grants  were  ir- 
revocable; that  the  Act  of  Virginia  of  1776,  con- 
firming to  the  Episcopal  Church,  as  successor  of  the 
Established  Church,  its  rights  to  lands,  was  not  con- 
trary to  the  State  constitution  and  did  not  infringe 
any  rights,  civil,  political,  or  religious,  under  the 
State  constitution;  that  later  acts  seeking  to  divest 
the  Episcopal  Church  of  Virginia  of  property  ac- 

o  For  an  interesting  account  of  the  reasons  leading  to  the  adop- 
tion of  this  provision  and  the  manner  of  its  adoption,  see  Reynolds 
V.  U.  S.,  (1878)  98  U.  S.  162-164. 

"The  oppressive  measures  adopted,  and  the  cruelties  and  punish- 
ments inflicted  by  the  governments  of  Europe  for  many  ages,  to 
compel  parties  to  conform,  in  their  religious  beliefs  and  modes  of 
worship,  to  the  views  of  the  most  numerous  sect,  and  the  folly  of  at- 
tempting in  that  way  to  control  the  mental  operations  of  persons, 
and  enforce  an  outward  conformity  to  a  prescribed  standard,  led  to 
the  adoption  of  the  amendment  in  question.  It  was  never  intended 
or  supposed  that  the  amendment  could  be  invoked  as  a  protection 
against  legislation  for  the  punishment  of  acts  inimical  to  the  peace, 
good  order  and  morals  of  society."  Davis  V.  Season,  (1890)  133 
U.  fe.  342. 


CITIZENSHIP 


quired  previous  to  the  Revolution  were  null,  etc.1    Chapter 
By  this  decision,  and  others  similar  in  other  States,  .    IV' 


the  Episcopal  Church  retained  much  property  in  the 
older  colonies. 

The  Supreme  Court  has  held  that  the  prohibition 
ahove  does  not  make  good  the  plea  of  a  person  ac-  ™n°dality 
cused  of  an  offense  against  morality  and  decency, 
that  he  has  acted  pursuant  to  the  tenets  of  his  re- 
ligious belief,  which  were  those  of  a  Mormon.2  It 
was  said,  "Religious  freedom  is  guaranteed  every- 
where throughout  the  United  States  so  far  as  con- 
gressional interference  is  concerned."  Congress 
was  deprived  of  all  legislative  power  over  mere 
opinion,  but  was  left  free  to  reach  actions  which  were 
violative  of  social  duties  or  subversive  of  good  order. 
"Polygamy  has  always  been  odious  among  the 
northern  and  western  nations  of  Europe,  and,  until 
the  establishment  of  the  Mormon  Church,  was  almost 
exclusively  a  feature  of  the  life  of  Asiatic  and  of 
African  people."  The  law  punishing  polygamy  was 
upheld  as  intended  to  prevent  a  pernicious  practice, 
no  matter  what  was  the  belief  of  the  party  engaging 
in  it.  The  opinion  delivered  by  Chief  Justice  Waite 
is  both  interesting  and  instructive  and  equally  appli- 
cable to  other  religious  immoralities  than  polygamy. 

In  a  later  case  the  Supreme  Court  declared  that 
bigamy  and  polygamy  are  crimes  by  the  laws  of  the 

iTerrett  v.  Taylor,  (1815)  9  Cranch  (U.  S.)  43. 

2  Reynolds  v.  U.  S.,  (1878)  98  U.  S.  145. 

By  the  provision  against  any  law  of  Congress  respecting  an 
establishment  of  religion,  or  prohibiting  the  very  exercise  thereof, 
or  abridging  the  freedom  of  speech  or  of  the  press,  "Congress  was 
deprived  of  all  legislative  power  over  mere  opinion,  but  was  left 
free  to  reach  actions  which  were  in  violation  of  social  duties,  or 
subversive  of  good  order."  Reynolds  v.  U.  S.,  (1878)  98  U.  S.  164. 


CITIZENSHIP 


chapter  United  States,  by  the  laws  of  Idaho,  and  by  the  laws 
'  of  all  civilized  and  Christian  countries;  and  to  call 
their  advocacy  a  tenet  of  religion  is  to  offend  the 
common  sense  of  mankind  ;  that  a  crime  is  none  the 
less  such,  nor  less  odious,  because  sanctioned  by 
what  any  particular  sect  may  designate  as  religion  ; 
and  that  the  first  amendment  to  the  Constitution  was 
never  intended  as  a  protection  from  punishment  for 
acts  inimical  to  the  peace,  good  order,  and  morals  of 
society.3 

sectarian          In  a  case  recently  decided,  it  was  held  that  plac- 

control  of 

govern-  jng  an  isolated  hospital  building  built  by  the  gov- 
hospitai.  ernment  in  charge  of  another  hospital,  which  was 
under  the  control  of  Sisters  of  the  Roman  Catholic 
Church,  was  not  obnoxious  to  the  constitutional  pro- 
hibition against  laws  respecting  an  establishment  of 
religion.4 

Of  the  Right  of  the  Citizen  to  Free  Speech.    (Amend- 
ment I.) 

Limitations         This  right  is  also  guaranteed  to  their  citizens  by 

of   the 

ri*ht-  all  the  States.  Of  it,  it  is  sufficient  to  say  that  it 
is  a  right  to  be  confined  within  the  bounds  of  decency 
and  morality,  and  gives  no  immunity  from  arrest 
and  punishment  for  treasonable,  seditious,  and  in- 
flammatory appeals.  In  time  of  war  numerous  ar- 
rests have  been  made  by  the  authority  of  military 
commissions,  and  citizens  have  been  actually  de- 
ported by  presidential  orders  without  trial  by  jury, 
and  after  vainly  seeking  redress  under  habeas  corpus 

3  Davis  v.  Season,   (1890)   133  U.  S.  333;  Church  of  Jesus  Christ 
V.  U.  S.,   (1890)   136  U.  S.  1. 

^Bradfield  v.  Roberts,   (1899)   175  U.  S.  291. 


CITIZENSHIP 


proceedings.5  And  in  time  of  peace,  under  Federal  chapter 
statutes  authorizing  the  deportation  of  anarchists,  L 
persons  have,  from  time  to  time,  been  indicted,  ar- 
rested, and  punished  or  deported,  for  seditious,  an- 
archistic, and  nihilistic  utterances  and  publications. 
The  justification  for  such  action  is  that  while  the 
constitutions,  Federal  and  State,  guarantee  freedom 
of  speech  and  of  the  press,  the  persons  so  speaking 
or  publishing  are  answerable  to  the  public  authori- 
ties for  their  acts  in  the  interests  of  good  citizenship, 
morality,  and  decency.6 

Of  the  Freedom  of  the  Press.     (Amendment  I.) 

The  freedom  of  the  press  has  been  described  as  ^Set- 
one  of  the  great  bulwarks  of  liberty.    Unquestion-  z 
ably  the  suppression  of  fair  discussion  of  public 
measures  in  the  press  was,  under  the  system  against 
which  the  colonists  rebelled,  one  of  the  most  odious 
forms  of  tyranny.     On  the  other  hand,  those  who, 
in  that  day,  were  so  ardent  for  the  absolute  liberty 

B  Ex  p.  Vallandigham,  (1863)   1  Wall.  (U.  S.)  243. 

6U.  S.  v.  Williams,  (1904)  194  U.  S.  279,  where  the  court  said: 
"We  are  not  to  be  understood  as  depreciating  the  vital  importance 
of  freedom  of  speech  and  of  the  press,  or  as  suggesting  limitations 
on  the  spirit  of  liberty,  in  itself  unconquerable,  but  this  case  does  not 
involve  those  considerations.  The  naming  brand  which  guards  the 
realm  where  no  human  government  is  needed  still  bars  the  entrance; 
and  as  long  as  human  governments  endure  they  cannot  be  denied  the 
power  of  self-preservation." 

"In  incorporating  these  principles  (the  first  ten  amendments  to 
the  Constitution)  into  the  fundamental  law,  there  was  no  intention 
of  disregarding  the  exceptions,  which  continued  to  be  recognized  as 
if  they  had  been  formally  expressed.  Thus  the  freedom  of  speech 
and  of  the  press  (Article  1)  does  not  permit  the  publication  of 
libels,  blasphemous  or  indecent  articles,  or  other  publications  in- 
jurious to  public  morals  or  private  reputation."  Robertson  v.  Bald- 
win, (1897)  165  U.  S.  381. 


190 


CITIZENSHIP 


IV. 


Injunction 
or  action 
for 
damages. 


chapter  of  the  press  could  not  have  foreseen  the  immense 
increase  in  public  and  private  printed  matter  which 
was  to  occur;  the  almost  unlimited  power  for  good 
or  evil  which  the  press  was  to  possess ;  the  irrepa- 
rable nature  of  the  injuries  which  it  is  often  able  to 
inflict;  or  the  irresponsible  hands  into  which  so  large 
a  portion  of  the  press  of  our  day  was,  in  time,  to 
pass.7 

The  State  constitutions  and  statutes  which  guar- 
antee tKe  freedom  of  the  press,  for  the  most  part, 
couple  with  that  guarantee  the  condition  that  the 
persons  so  printing  shall  be  answerable  in  damages 
for  any  abuse  of  the  privilege.  But  the  privilege 
itself  is  regarded  as  of  such  dignity  and  sanctity 
that  the  courts  of  sundry  States  have  held  that  an 
injunction  will  not  lie  to  restrain  the  publication  of 
an  alleged  libel,  and  the  only  redress  of  a  party 
libeled  is  to  bring  an  action  for  damages  after  the 
fact  or  prosecute  the  offender  criminally.8 

Rights  Guaranteed   by  Amendments  II-VIII,  XI, 

and  XII. 

Of  the  other  rights  guaranteed  by  the  amend- 
ments from  II  to  VIII  we  shall  not  speak  in  detail, 

7  "It  is  well  understood,  and  received  as  a  commentary  on  this 
provision  for  the  liberty  of  the  press,  that  it  was  intended  to  pre- 
vent all  such  previous  restraints  upon  publications  as  had  been 
practised  by  other  governments,  and  in  early  times  here,  to  stifle  the 
efforts  of  patriots  towards  enlightening  their  fellow  subjects  upon 
their  rights  and  the  duties  of  rulers.  The  liberty  of  the  press  was 
to  be  unrestrained,  but  he  who  used  it  was  to  be  responsible  in  case 
of  its  abuse;  like  the  right  to  keep  fire  arms,  which  does  not  protect 
him  who  uses  them  for  annoyance  or  destruction."  Per  Parker,  C.  J., 
in  Com.  v.  Blanding,  (1825)  3  Pick.  (Mass.)  314. 

sMarlin  Fire  Arms  Co.  v.  Shields,  (1902)  171  N.  Y.  384,  and 
cases  cited. 


CITIZENSHIP  191 

because  their  nature,  extent,  and  full  interpretation    chapter 
will  be  found  sufficiently  considered  in  the  authori-  ' — 

ties  cited  in  connection  with  their  statement.9  Nor 
do  the  amendments  numbered  XI  and  XII  bear 
directly  on  our  subject. 

Having  now  come  to  the  war  amendments,  let  us 
proceed  to  consider  them  in  their  order. 

» Ohio  v.  Dollison,   (1904)    194  U.  S.  445. 


CHAPTEE  V. 

PRIVILEGES   AND   IMMUNITIES   UNDER   THE   WAR  AMEND- 
MENTS. 

THE  THIRTEENTH  AMENDMENT. 

chapter    'THHIS  amendment  simply  abolished  slavery.    Be- 
'. —  yond  the  declaration  that  neither  slavery  nor 


involuntary  servitude,  etc.,  should  exist  with- 
n  general.  jn  ^e  United  States  or  any  place  subject  to  their 
jurisdiction,  it  enacted  nothing.1  It  did  not  even 
affect  the  validity  of  a  note  given  for  a  slave  when 
slavery  was  lawful.2  The  main  purpose  of  the 
amendment  was  to  abolish  African  slavery,  but  it 
equally  forbids  Mexican  peonage  or  Chinese  cooly 
trade,  amounting  to  slavery,  and  the  use  of  the  word 

i"This  amendment,  as  well  as  the  Fourteenth,  is  undoubtedly 
self-executing  without  any  ancillary  legislation,  so  far  as  its  terms 
are  applicable  to  any  existing  state  of  circumstances.  By  its  own 
unaided  force  and  effect  it  abolished  slavery  and  established  uni- 
versal freedom.  Still,  legislation  may  be  necessary  and  proper  to 
meet  all  the  various  cases  and  circumstances  to  be  affected  by  it, 
and  to  prescribe  proper  modes  of  redress  for  its  violation  in  letter 
or  spirit.  And  such  legislation  may  be  primary  and  direct  in 
its  character;  for  the  amendment  is  not  a  mere  prohibition  of  State 
laws  establishing  or  upholding  slavery,  but  an  absolute  declaration 
that  slavery  or  involuntary  servitude  shall  not  exist  in  any  part  of 
the  United  States."  Civil  Rights  Cases,  (1883)  109  U.  S.  20.  See 
also  Peonage  Cases,  (1903)  123  Fed.  Rep.  671;  U.  S.  v.  McClellan, 
(1904)  127  Fed.  Rep.  971. 

2  White  v.  Hart,  (1871)  13  Wall.  (U.  S.)  646;  Osborn  V.  Nich- 
olson, (1871)  13  Wall.  (U.  S.)  654. 

There  is  nothing  in  the  language  of  the  amendment  which  in  the 
slightest  degree  warrants  the  inference  that  those  who  framed  or 
those  who  adopted  it  intended  that  it  should  effect  the  destruction 

192 


CITIZENSHIP  193 


4  i  servitude  '  '    prohibits    all    forms    of    involuntary    chapter 
slavery  of  whatever  class.3  _  _ 


The  XIII  Amendment  was,  however,  held  not 
to  authorize  the  passage  by  Congress  of  laws  re-  ?a°cel—  r 
quiring  equal  accommodation  in  inns,  public  convey-  contracts. 
ances,  and  places  of  amusement,  for  it  was  said  that 
the  denial  of  such  equal  accommodations  imposes  no 
badge  of  slavery  or  involuntary  servitude  upon 
either  race.4  Nor  does  it  place  any  restraint  upon 
the  States  from  passing  laws  requiring  railway  com- 
panies carrying  passengers  in  their  coaches,  within 
the  State,  to  provide  equal  but  separate  accommoda- 
tions for  the  white  and  for  the  colored  race,  and  that 
the  races  be  kept  separate  on  railroads  and  steam- 

of  rights  legally  and  completely  vested  at  the  time  of  its  adoption. 
Osborn  v.  Nicholson,    (1871)    13  Wall.    (U.  S.)    662;  White  V.  Hart, 

(1871)  13  Wall.    (U.  S.)    646. 

3  "  Undoubtedly,  while  negro  slavery  alone  was  in  the  mind  of 
the  Congress  which  proposed  the  thirteenth  article,  it  forbids  any 
other  kind  of  slavery,  now  or  hereafter.     If  Mexican  peonage  or  the 
Chinese    cooly   labor   system    shall   develop   slavery   of   the   Mexican 
or  Chinese  race  within  our  territory,  this  amendment  may  safely 
be  trusted  to  make  it  void.     And   so,  if  other  rights  are  assailed 
by  the  States  which  properly  and  necessarily  fall  within  the  pro- 
tection of  these  articles,  that  protection  will  apply  though  the  party 
interested  may  not  be  of  African  descent."     Slaughter-House  Cases, 

(1872)  16  Wall.    (U.  S.)    71.     See  also  Plessy  v.  Ferguson,    (1896) 
163  U.  S.  542;  U.  S.  v.  Wong  Kim  Ark,   (1898)    169  U.  S.  677. 

4  Civil  Rights  Cases,    (1883)    109   U.   S.   3. 

"A  statute  which  implies  merely  a  legal  distinction  between 
the  white  and  colored  races  —  a  distinction  which  is  founded  in 
the  color  of  the  two  races,  and  which  must  always  exist  so  long 
as  white  men  are  distinguished  from  the  other  race  by  color  — 
has  no  tendency  to  destroy  the  legal  equality  of  the  two  races, 
or  reestablish  a  state  of  involuntary  servitude.  .  .  .  Legisla- 
tion is  powerless  to  eradicate  racial  instincts  or  to  abolish  distinc- 
tions based  upon  physical  differences,  and  the  attempt  to  do  so  can 
only  result  in  accentuating  the  difficulties  of  the  present  situation. 
If  the  civil  and  political  rights  of  both  races  be  equal,  one  cannot 
be  inferior  to  the  other  civilly  or  politically.  If  one  race  be  inferior 
13 


194 


CITIZENSHIP 


Slavery 
alone  af- 
fected. 


Chapter  boats;  or  from  separating  the  races  in  schools.5 
Nor  does  it  authorize  federal  courts  to  annul  sailors ' 
contracts  on  the  plea  that  they  are  contracts  for  in- 
voluntary servitude;  for  a  sailor's  contract  neces- 
sarily involves,  to  a  certain  extent,  surrender  of  his 
personal  liberty,  during  the  life  of  the  contract,  and 
was  not  in  the  contemplation  of  this  amendment.6 

And  this  is  all  that  was  enacted  by  the  XIII 
Amendment,  and  all  that  has  ever  been  decided  con- 
cerning it  by  the  court  of  last  resort  intrusted  with 
its  interpretation.  It  affected  no  right  theretofore 
possessed  by  any  State  in  the  Union,  except  the 
right  to  establish  or  recognize  slavery  or  involun- 
tary servitude.  It  effected  no  change  in  the  rela- 
tions of  the  Union  and  the  States  composing  it  to 
each  other,  or  in  the  organic  structure  of  the  Nation 
or  the  States. 


OF  THE  BIGHTS  OF  CITIZENS  UNDER  THE  FOURTEENTH 
AMENDMENT. 

When  the  XIII,  XIV,  and  XV  Amendments 
first  came  up  for  interpretation  before  the  Su- 
preme Court  of  the  United  States  in  the  famous 

to  the  other  socially,  the  Constitution  of  the  United  States  cannot 
put  them  upon  the  same  plane."  Plessy  v.  Ferguson,  (1896)  163 
U.  S.  543,  551. 

5  Louisville,  etc.,  R.  Co.  v.  Mississippi,  (1890)  133  U.  S.  587; 
Plessy  v.  Ferguson,  (1896)  163  U.  S.  537;  Cumming  v.  Board  of 
Education,  (1899)  175  U.  S.  528;  Chesapeake,  etc.,  R.  Co.  v.  Ken- 
tucky, (1900)  179  U.  S.  387. 

e  Robertson  v.  Baldwin,    (1897)    165  U.  S.  275. 

"  The  amendment  was  not  intended  to  introduce  any  novel  doc- 
trine with  respect  to  certain  descriptions  of  service  which  have  al- 
ways been  treated  as  exceptional,  such  as  military  and  naval  enlist- 
ments, or  to  disturb  the  right  of  parents  and  guardians  to  the 
custody  of  their  minor  children  or  wards.  The  amendment,  how- 


Early  view 
as  to 
scope. 


CITIZENSHIP  195 


Slaughter-House  Cases,  Mr.  Justice  Swayne  said    Chapter 
of  them,  "Fairly  construed,  they  may  be  said  to         ' 
rise  to  the  dignity  of  a  new  Magna  Charta."    In  the 
light  of  subsequent  decisions  their  enactments  must 
be  regarded  as  of  much  narrower  scope. 

The  XIV  Amendment  is  broader  in  language 
than  the  XIII,  yet  no  broader  than  the  XIII  in 
conferring  any  power  upon  the  Federal  govern- 
ment to  legislate  upon  its  own  initiative.  It  de- 
clared a  new  law  of  citizenship,  but  the  only  power 
of  legislation  conferred  by  it  upon  Congress  was 
power  to  enact  restrictive  legislation  against  any 
State  action  which  might  be  taken  contrary  to 
the  amendment  itself. 

The  language  of  the  amendment  is  in  part : 
Section  1.    All  persons  born  or  naturalized  in  the 
United  States  and  subject  to  the 
jurisdiction  thereof  are  citizens  of 
the  United  States  and  of  the  State 
wherein  they  reside. 
No  State  shall  make  or  enforce 
[(a)  Any  law  which  shall  abridge  the 
privileges  or  immunities  of  citizens  of 
the  United  States. 

[(b)  Nor  shall  any  State  deprive  any  per- 
son of  life,  liberty,  or  property  without 
due  process  of  law. 

ever,  makes  no  distinction  between  a  public  and  a  private  service. 
To  say  that  persons  engaged  in  a  public  service  are  not  within  the 
amendment  is  to  admit  that  there  are  exceptions  to  its  general  lan- 
guage, and  the  further  question  is  at  once  presented,  where  shall  the 
line  be  drawn?  We  know  of  no  better  answer  to  make  than*  to 
say  that  services  which  have  from  time  immemorial  been  treated 
as  exceptional  shall  not  be  regarded  as  within  its  purview."  Rob- 
ertson v.  Baldwin,  (1897)  165  U.  S.  282. 


196  CITIZENSHIP 


deny  to  any  person  within  its 
'.  —  jurisdiction   the    equal   protection   of 

the  laws. 

Sec.  5.  The  Congress  shall  have  power  to  en- 
force, by  appropriate  legislation,  the 
provisions  of  this  article. 

Congress  has  attempted  to  pass  many  acts  en- 
forcing  the  provisions  of  that  article.    Its  enact- 


ments have  given  rise  to  an  amount  of  litigation  un- 
precedented in  the  history  of  our  Constitution.  Not 
even  the  commerce  clause  of  the  Constitution,  or 
the  contract  clause,  has  proved  as  fertile  of  contro- 
versies as  the  interpretation  of  this  amendment, 
and  laws  enacted  by  Congress,  under  the  supposed 
authority  of  this  amendment,  have  more  frequently 
been  challenged  successfully,  and  rights  asserted 
under  it  have  been  less  frequently  recognized,  than 
under  any  other  provision  of  the  Constitution. 
oid  and  rphe  declaration  contained  in  the  amendment  that 

ofnccii?zen-  citizens  of  the  United  States  shall  be  deemed  citi- 
;zens  of  the  State  wherein  they  reside  is  merely  a 
reiteration  of  the  law  as  it  existed  before  the  amend- 
ment and  as  it  had  been  announced  by  Chief  Justice 
Marshall  in  Gassies  v.  Ballon?  where  it  is  said  :  "  A 
citizen  of  the  United  States,  residing  in  any  State 
of  the  Union,  is  a  citizen  of  that  State."  The  dec- 
laration that  all  persons  born  in  the  United  States 
and  subject  to  the  jurisdiction  thereof  are  citizens 
of  the  United  States  was  the  announcement  of  a  new 
law  of  Federal  citizenship,  carrying  with  it  a  new 
law  of  State  citizenship  and  altering,  as  it  was  in- 
tended to  alter,  the  rule  of  citizenship  established 

7  (1832)  6  Pet.   (U.  S.)  761. 


CITIZENSHIP  197 


by  the  decision  of  the  Supreme  Court  in  the  case  of    chaptei 
Dred Scott  v.  Sandford8     To  that  extent  the  amend-  L_ 


ment  worked  a  radical  change.8* 

The  next  clause  requires  a  restatement  of  its 
provisions,  because  nearly  all  the  litigation  which  clause- 
has  arisen  upon  the  XIV  Amendment  has  grown 
out  of  the  prohibitions  of  this  clause.  The  language 
is:  "No  State  shall  make  or  enforce  any  law  which 
shall  abridge  the  privileges  or  immunities  of  citi- 
zens of  the  United  States;  nor  shall  any  State  de- 
prive any  person  of  life,  liberty,  or  property  with- 
out due  process  of  law,  nor  deny  to  any  person 
within  its  jurisdiction  the  equal  protection  of  the 
laws." 

This  language  is  plain  enough.  It  cannot  be 
tortured  into  anything  but  a  prohibition  against  the 
enactment  by  any  State  of  any  law  abridging  the 
privileges  or  immunities  of  any  citizen  of  the  United 
States,  or  depriving  any  person  of  life,  liberty,  or 
property  without  due  process  of  law,  or  denying  to 
any  person  within  its  jurisdiction  the  equal  protec- 
tion of  the  laws.  It  relates  to  the  States  altogether. 
It  does  not  require  them  to  enact  any  law.  It  sim- 
ply forbids  them  from  enacting  the  laws  described 
as  obnoxious.  It  certainly  does  not  confer  upon 

s  (1856)   19  How.  (U.  S.)   398. 

s*  Slaughter-House  Cases,  (1872)  16  Wall.  (U.  S.)  36;  Strauder 
V.  West  Virginia,  (1879)  100  U.  S.  306;  Elk  v.  Wilkins,  (1884) 
112  U.  S.  101;  U.  S.  v.  Wong  Kim  Ark,  (1898)  169  U.  S.  676; 
Maxwell  v.  Dow,  (1900)  176  U.  S.  593. 

"Enough  appears  in  the  language  employed  in  those  provisions 
[the  Civil  Rights  Act  and  the  Fourteenth  Amendment  to  the  Fed- 
eral Constitution]  to  show  that  their  principal  object  was  to  confer 
citizenship,  and  the  rights  which  belong  to  citizens  as  such,  upon  the 
colored  people,  and  in  that  manner  to  abrogate  the  rule  previously 


\ 


198 


CITIZENSHIP 


Chapter    the  Federal  government  any  power  to  enact  any 

! —  kind  of  laws  except  laws  enforcing  this  prohibition 

against  the  States.  It  adds  nothing  to  and  takes 
nothing  away  from  the  right  of  one  citizen  against 
another,  whether  he  be  a  citizen  of  the  United  States 
or  a  citizen  of  the  State.  It  forbids  States  from 
encroaching  upon  existing  rights,  but,  however  it 
may  have  intended,  it  is  equally  clear  that  it  does 
not  forbid  individuals  from  encroaching  upon  those 
rights.  The  power  conferred  upon  Congress  is  to 
enforce,  by  ' '  appropriate  legislation, ' '  the  provisions 
of  the  article.  The  provisions  of  the  article  were 
directed  solely  against  the  States.  The  power  of 
Congress  derived  from  the  amendments  must  there- 
fore be  confined  to  the  power  to  legislate  against  the 
States  to  enforce  those  provisions.9 

The  Supreme  Court  significantly  pointed  out  this 
limited  power  of  Congress  under  the  amendment 
when,  in  the  Slaughter-House  Cases,  it  declared  that 
the  protection  given  by  the  amendment  was  "from 

adopted  by  this  court  in  the  Dred  Scott  case."  Per  Mr.  Justice 
Clifford  in  Hall  v.  De  Cuir,  (1877)  95  U.  S.  509. 

"The  distinction  between  citizenship  of  the  United  States  and 
citizenship  of  a  State  is  clearly  recognized  and  established.  Not 
only  may  a  man  be  a  citizen  of  the  United  States  without  being  a 
citizen  of  a  State,  but  an  important  element  is  necessary  to  convert 
the  former  into  the  latter.  He  must  reside  within  the  State  to 
make  him  a  citizen  of  it,  but  it  is  only  necessary  that  he  should 
be  born  or  naturalized  in  the  United  States  to  be  a  citizen  of  the 
Union.  It  is  quite  clear,  then,  that  there  is  a  citizenship  of  the 
United  States,  and  a  citizenship  of  a  State,  which  are  distinct 
from  each  other,  and  which  depend  upon  different  characteristics 
or  circumstances  in  the  individual."  Slaughter-House  Cases,  ( 1872 ) 
16  Wall.  (U.  S.)  73. 

9 "  Positive  rights  and  privileges  are  undoubtedly  secured  by 
the  Fourteenth  Amendment;  but  they  are  secured  by  way  of  pro- 
hibition against  State  laws  and  State  proceedings  affecting  those 


The  En- 

forcement 

Act. 


CITIZENSHIP  199 


the  hostile  legislation  of  the  States/'  This  was  in  chapter 
1872.  But  Congress  had  already  passed  an  act,  — II — 
called  the  Enforcement  Act,  in  which  it  had  under- 
taken to  legislate  against  individuals  for  conspiring 
or  acting  singly  against  citizens  for  the  purpose  of 
abridging  their  privileges  or  immunities  and  de- 
priving them  of  life,  liberty,  or  property,  or  prevent- 
ing their  enjoyment  of  the  equal  protection  of  the 
laws,  under  these  constitutional  amendments.  Cer- 
tain acts  violative  of  the  rights  of  citizens,  as  de- 
fined by  the  XIV  and  XV  Amendments,  committed 
by  individuals  either  singly  or  in  conspiracy  with 
others,  were  declared  to  be  in  violation  of  Federal 
law,  and  penalties  were  denounced  aganist  the  per- 
petrators, and  under  these  acts  arrests  were  made 
and  prosecutions  had. 

Congress  also  passed  an  act  known  as  the  Civil  RJ 
Eights  Bill,  by  which  it  undertook  to  require  inn- 
keepers, carriers,  and  keepers  of  places  of  public 
amusement  not  to  discriminate  against  any  classes 
of  citizens  in  the  accommodations  which  they  sup- 
plied, and  to  give  to  citizens  who  were  denied  these 
equal  accommodations  right  of  action  and  damages 
for  such  denial.  The  defendants  in  all  these  cases, 
criminal  and  civil,  challenged  the  power  of  Con- 
gress to  pass  the  laws  under  which  they  were  in- 
dicted or  sued. 

rights  and  privileges,  and  by  power  given  to  Congress  to  legislate 
for  the  purpose  of  carrying  such  prohibition  into  effect:  and  such 
legislation  must  necessarily  be  predicated  upon  such  supposed  State 
laws  or  State  proceedings,  and  be  directed  to  the  correction  of  their 
operation  and  effect."  Civil  Rights  Cases,  (1883)  109  U.  S.  11. 
See  also  U.  S.  v.  Cruikshank,  (1875)  92  U.  S.  542;  Virginia  V. 
Rives,  (1879)  100  U.  S.  313;  Ex  p.  Virginia,  (1879)  104  U.  S. 
339;  Plessy  v.  Ferguson,  (1896)  163  U.  S.  537. 


200  CITIZENSHIP 


Chapter          Two  criminal  cases,  involving  this  defense,  were 
'       decided  by  the  Supreme  Court  in  1875.     One  was 
the  case  of  United  States  v.  Reese,  arising  under 


Enndforrcehe  the  clause  of  the  Enforcement  Act  which  under- 
lt  Act*  took  to  punish  an  individual  for  seeking  to  de- 
prive a  citizen  of  his  rights  under  the  XV  Amend- 
ment.1 The  other  was  the  case  of  United  States  v. 
Cruikshank2  arising  under  the  clause  of  the  En- 
forcement Act  which  undertook  to  punish  an  indi- 
vidual for  depriving  a  citizen  of  his  rights  under 
the  XIV  Amendment. 

decr5ionsof  *n  tne  case  °^  Reese  it  was  declared  that  the  XV 
Amendment  conferred  no  right  to  vote;  that  it  in- 
vested United  States  citizens  with  fhe  right  of  ex- 
emption from  discrimination  in  the  exercise  of  suf- 
frage on  account  of  race,  color,  or  previous  condi- 
tion; that  the  power  of  Congress  to  legislate  at  all 
concerning  voting  at  State  elections  rested  on  the 
XV  Amendment  and  could  be  exercised  only  by  pro- 
viding punishment  when  the  wrongful  refusal  was 
because  of  race,  color,  or  previous  condition.  In  the 
Cruikshank  case  the  court  said:  "The  equality  of 
the  rights  of  citizens  is  a  principle  of  republicanism. 
Every  republican  government  is  in  duty  bound  to 
protect  all  its  citizens  in  the  enjoyment  of  this  prin- 
ciple, if  it  is  within  its  power."  But  the  court  fur- 
ther proceeded  to  say  that  this  duty  was  originally 
assumed  by  the  States,  and  it  still  remains  there. 
The  only  obligation  resting  upon  the  United  States 
is  to  see  that  the  States  do  not  deny  the  right,  This 
the  amendment  guarantees,  but  no  more.  The  power 

iU.  S.  v.  Reese,   (1875)   92  U.  S.  215. 

2U.  S.  V.  Cruikshank,    (1875)   92  U.  S.  542. 


CITIZENSHIP  201 


of  the  national  government  is  limited  to  the  en-    chapter 

forcement  of  that  guarantee.     The  court,  however,  ! — 

found  technical  difficulties  in  the  indictment  which 
enabled  it  to  set  aside  the  conviction  without  going 
further.  It  was  plain  to  see  that  the  Supreme  Court 
doubted  the  power  of  Congress  to  enact  laws  directed 
against  individuals  for  violating  the  rights  of  citi- 
zens guaranteed  against  State  legislation  by  the 
XIV  and  XV  Amendments. 

In  the  case  of  U.  S.  v.  Harris?  the  Supreme  ^aasteesr_ 
Court  declared  the  Enforcement  Act  void  in  the  fol- 
lowing  language:  "When  an  Act  of  Congress  is 
directed  exclusively  against  the  action  of  private 
persons,  without  reference  to  the  laws  of  the  State, 
or  their  administration  by  her  officers,  it  is  not  war- 
ranted by  any  clause  in  this  amendment,"  and  this 
language  has  been  reiterated  by  the  court  on  many 
occasions.4 

In  the  case  In  re  Kemmler,4*  the  Supreme  Court 
said:  "The  XIV  Amendment  did  not  radically 
change  the  whole  theory  of  the  relations  of  the  State 
and  Federal  government  to  each  other  and  of  both 
governments  to  the  people.  .  .  .  Protection  of 
life,  liberty,  and  property  rests  primarily  with  the 
States;"  and  the  opinion  goes  on  to  declare  that 

s  (1882)    106  U.  S.  640. 

*  Baldwin  v.  Frank,  (1887)  120  U.  S.  684;  Powell  v.  Pennsyl- 
vania, (1888)  127  U.  S.  685;  In  re  Kemmler,  (1890)  136  U.  S. 
448;  In  re  Rahrer,  (1891)  140  U.  S.  554;  McPherson  v.  Blacker, 
(1892)  146  U.  S.  39;  Mobile,  etc.,  R.  Co.  v.  Tennessee,  (1894)  153 
U.  S.  506;  Scott  v.  McNeal,  (1894)  154  U.  S.  34,  45;  Chicago,  etc., 
R.  Co.  v.  Chicago,  (1897)  166  U.  S.  226,  233;  Louisville,  etc.,  R. 
Co.  v.  Kentucky,  (1902)  183  U.  S.  511;  Chadwick  v.  Kelley,  (1903) 
187  U.  S.  540;  Missouri  v.  Dockery,  (1903)  191  U.  S.  170. 
4*  (1890)  136  U.  S.  448. 


202 


CITIZENSHIP 


Chapter    the  amendment  guarantees  only  that  the  State  shall 

! —  not  encroach  upon  the  fundamental  rights  of  her 

citizens  or  discriminate  between  them.  And  when 
in  1883  the  measure  of  Congress  known  as  the 
Civil  Eights  Bill  came  up  for  adjudication  it  was 
declared  unconstitutional.5  In  that  case  it  was  held 
that  the  XIV  Amendment  does  not  justify  establish- 
ing a  code  of  municipal  law  regulative  of  all  private 
rights  between  man  and  man  in  society,  or  make 
Congress  take  the  place  of  State  legislatures,  and 
that  the  legislation  which  Congress  was  author- 
ized to  adopt  was  not  general  legislation  upon  the 
rights  of  citizens,  but  corrective  legislation  neces- 
sary to  counteract  State  legislation  prohibited  by 
the  amendment.  i '  Individual  invasion  of  individual 
rights  is  not  the  subject  matter  of  the  amendment, " 
was  the  language  used.6 

The  last  and  one  of  the  most  emphatic  expres- 
sions of  the  Supreme  Court  against  the  power  of 
Congress  to  enact  a  statute  punishing  purely  indi- 
vidual action,  as  an  appropriate  exercise  of  power 
conferred  by  either  the  XIV  or  XV  Amendments 

B  Civil  Rights  Cases,  (1883)   109  U.  S.  11. 

6 "  The  prohibitions  of  the  amendment  are  against  State  laws 
and  acts  done  under  State  authority.  Of  course,  legislation  may, 
and  should  be,  provided  in  advance  to  meet  the  exigency  when  it 
arises;  but  it  should  be  adopted  to  the  mischief  and  wrong  which 
the  amendment  was  intended  to  provide  against;  and  that  is,  State 
laws,  or  State  action  of  some  kind,  adverse  to  the  rights  of  the 
citizen  secured  by  the  amendment.  Such  legislation  cannot  prop- 
erly cover  the  whole  domain  of  rights  appertaining  to  life,  liberty 
and  property,  defining  them  and  providing  for  their  vindication. 
That  would  be  to  establish  a  code  of  municipal  law  regulative  of 
all  private  rights  between  man  and  man  in  society.  It  would  be 
to  make  Congress  take  the  place  of  the  State  legislatures  and  to 
supersede  them."  Civil  Rights  Cases,  (1883)  109  U.  S.  13. 


—  James 
v.  Bow- 
man. 


CITIZENSHIP  203 


will  be  found  in  a  case  decided  in  1903.7    In  that    chapter 
case  Bowman  was  indicted  under  Section  5507  of  -    — 


the  Bevised  Statutes,  which  was  a  part  of  the  same 
Act  under  which  Eeese  and  Cruikshank  were  in- 
dicted. The  Act  attempted  to  punish  by  fine  and 
imprisonment  every  person  who  should  prevent, 
hinder,  control,  or  intimidate  in  the  exercise  of  the 
right  of  suffrage,  by  certain  means  described,  any 
one  to  whom  that  right  is  guaranteed  by  the  XV 
Amendment.  The  court  held  that  the  Act  was  be- 
yond the  power  of  Congress,  and  discharged  the 
prisoner  on  a  writ  of  habeas  corpus.  It  reviewed 
the  authorities  above  referred  to,  and  declared  that 
a  Federal  statute  which  purported  to  punish  purely 
individual  action  in  the  particulars  named  was  un- 
constitutional. 

So  that,  at  the  present  time,  it  may  be  truly  said 
that  the  statutes,  both  of  criminal  and  of  civil  nature,  t1ontea?ocne 
which  the  Congress  has  attempted  to  enact,  directed 
against  individuals,  and  purporting  to  punish  them 
or  subject  them  to  damages  for  violating  the  rights 
of  citizens  under  the  XIV  and  XV  Amendments, 
have  been  nullified  by  the  decisions  of  the  Supreme 
Court.  But  while  the  power  granted  to  the  courts 
by  the  amendments  has  been  thus  restricted  by  in- 
terpretation, the  power  to  legislate  against  Stale 
action  has  been  sustained,  and,  in  sundry  instances, 
State  action  has  been  nullified. 

In  the  first  group  of  cases,  decided  by  the  Su- 
preme  Court  in  1879,  the  following  decisions  illus- 
trate  what  the  amendment  did  effect.  The  law  of 
West  Virginia  which  singled  out  and  denied  to  col- 

7  James  v.  Bowman,   (1903)    190  U.  S.  127. 


204 


CITIZENSHIP 


V. 


Ex  p. 
Virginia. 


Chapter  ored  citizens  the  right  and  privilege  of  participating 
in  the  administration  of  the  laws  by  serving  on 
juries,  because  of  their  color,  was  held  to  be  void 
for  the  discrimination.7*  In  another  case  it  appeared 
that  the  jury  law  of  Virginia  did  not  forbid  the 
summoning  of  negroes  to  act  on  the  panel,  and  that 
if  there  were  none  on  the  jury  which  tried  the  ac- 
cused, it  was  either  by  chance  or  by  the  negligence 
or  wilful  misconduct  of  a  subordinate  officer.  In 
that  case  it  was  held  that  this  did  not  constitute  a 
denial  by  the  State.8 

In  the  third  case  which  came  up  from  Virginia,8* 
where  the  jury  law  was  as  stated  above,  the  court 
refused  to  grant  a  writ  of  habeas  corpus  in  favor 
of  a  judge  who  had  been  indicted  for  refusing  to 
summon  negroes  on  the  jury.  His  release  had  been 
demanded  by  the  State.  It  is  difficult  to  see  how 
the  ruling  in  this  case  can  be  justified,  for  the  Su- 
preme Court  had,  at  the  same  term,  said  that  the 

XIV  Amendment  was  directed  at  State  action,  and 
had  declared  in  the  Eeese  and  Cruikshank  cases,  in 
effect,  that  Federal  legislation  against  individuals 
was  not  contemplated  or  authorized  by  the  XIV  or 

XV  Amendments ;  and  in  an  opinion  delivered  on  the 
same  day  it  declared  that  if  an  executive  or  a  judicial 
officer  in  Virginia  exercised  unwarranted  power  or 
did  unauthorized  acts,  prejudicial  to  the  rights  of 
a  citizen  of  the  United  States,  the  remedy  was  by 
appeal.    It  had  allowed  an  appeal  and  had  granted 
relief  in  a  similar  case  in  West  Virginia;  and  sub- 

7*Strauder  v.  West  Virginia,   (1879)   100  U.  S.  303. 
s  Virginia  v.  Rives,    (1879)   100  U.  S.  313. 
s*  (1879)   Ex  p.  Virginia,  100  U.  S.  339. 


CITIZENSHIP  205 


sequently,  in  the  case  of  U.  S.  v.  Harris,9  in  the    Chapter 
Civil  Rights  Cases,9*  in  Baldwin  v.  Frank,1  and  in 


James  v.  Bowman?  *  it  nullified  the  Enforcement  Act 
and  the  Civil  Rights  Bill  on  the  ground  that  indi- 
vidual invasion  of  individual  rights  was  not  the  sub- 
ject matter  of  the  amendment. 

It  is  impossible  to  reconcile  the  decision  in  Ex  p. 
Virginia  with  the  others.  Perhaps  the  court  did  not 
at  that  time  understand  as  fully  as  it  came  to  under- 
stand later  the  real  scope  of  the  amendments. 

As  they  stand,  the  two  cases  of  Virginia  v.  Rives  vjr$£s 
and  Ex  p.   Virginia  present  an  amusing  line   of  J"V^f 
judicial  demarcation.    In  Virginia  v.  Rives,  the  mis-  pawr?d.con 
conduct  of  a  sheriff  in  the  method  of  summoning  a 
jury  was  declared  not  to  be  the  action  of  the  State 
and  to  be  remediable  on  appeal.    In  the  case  of  Ex 
p.  Virginia,  decided  the  same  day,  the  misconduct 
of  a  judge  in  not  summoning  a  proper  jury  was 
held  to  be  the  action  of  the  State,  remediable  by  the 
indictment  of  the  judge,  although  the  State  had  done 
no  wrong.2     The  only  legal  principle  to  be  deduced 

9  (1882)    106   U.  S.  640.         1  (1887)    120  U.  S.  684. 

»*  (1883)   109  U.  S.  3.  i*  (1903)    190  U.  S.  127. 

2  In  the  Civil  Rights  Cases,  (1883)  109  U.  S.  3,  the  case  of 
Ex  p.  Virginia,  (1879)  100  U.  S.  339,  is  distinguished  by  the 
Supreme  Court  in  the  following  language :  "  In  the  Virginia  case, 
the  State,  through  its  officer,  enforced  a  rule  of  disqualification 
which  the  law  was  intended  to  abrogate  and  counteract.  Whether 
the  statute  book  of  the  State  actually  laid  down  any  such  rule  of 
disqualification  or  not,  the  State,  through  its  officer,  enforced  such 
a  rule;  and  it  is  against  such  State  action,  through  its  officers  and 
agents,  that  the  last  clause  of  the  section  is  directed.  This  aspect 
of  the  law  was  deemed  sufficient  to  divest  it  of  any  unconstitutional 
character,  and  makes  it  differ  widely  from  the  first  and  second 
sections  of  the  same  act  which  we  are  now  considering." 

"  The  prohibitions  of  the  amendment  refer  to  all  the  instrumen- 


206 


CITIZENSHIP 


Volume  of 


the  XIV 
Amend- 
ment. 


Chapter    from  the  two  decisions  is  that  the  boundary  line  be- 
'       tween  an  officer  who  is  the  State  and  an  officer  who 
is  not  the  State  lies  somewhere  between  a  sheriff 
and  a  judge. 

State  action  discriminating  between  citizens  has 
been  frequently  nullified  by  Federal  decisions  since. 
In  most  cases  the  discrimination  was  in  regard  to 
the  constitution  of  juries.2*  These  cases  will  be  con- 
sidered in  discussing  the  decisions  under  the  clauses 
of  the  amendments  to  which  they  refer. 

Having  now  discussed  the  general  features  of 
the  firgt  and  fifth  sectiolis  of  the  XIV  Amendment, 

we  come  to  a  consideration  of  the  decisions  rendered 
upon  it  by  the  Supreme  Court  of  the  United  States 
during  the  forty  years  since  its  passage.  Three 
hundred  cases,  involving  its  construction,  have  been 
decided  by  that  court,  scrutinizing  it  from  nearly 
every  point  of  view  in  which  it  may  possibly  be  con- 
sidered, and  we  need  cite  no  other  authority  on  the 
questions,  because  the  decisions  of  the  Supreme 
Court  are  the  supreme  law  of  the  land,  anything  in 

talities  of  the  State,  to  its  legislative,  executive,  and  judicial  authori- 
ties; and  therefore  whoever,  by  virtue  of  public  position  under  a 
State  government,  deprives  another  of  any  right  protected  by  that 
amendment  against  deprivation  by  the  State  *  violates  the  consti- 
tutional inhibition;  and  as  he  acts  in  the  name  of  and  for  the  State, 
and  is  clothed  with  the  State's  power,  his  act  is  that  of  the  State.' 
This  must  be  so,  or,  as  we  have  often  said,  the  constitutional  pro- 
hibition has  no  meaning,  and  '  the  State  has  clothed  one  of  its 
agents  with  power  to  annul  or  evade  it.' "  Chicago,  etc.,  R.  Co.  v. 
Chicago,  (1897)  166  U.  S.  233. 

2*  Missouri  v.  Lewis,    (1879)    101   U.   S.  22;   Neal  v.  Delaware, 

(1880)  103  U.  S.  370;  Carter  V.  Texas,  (1900)  177  U.  S.  442; 
Rogers  v.  Alabama,  (1904)  192  U.  S.  226;  Tarrance  v.  Florida, 

(1903)    188  U.  S.  519. 


CITIZENSHIP  207 


conflict  with  them  in  inferior  courts,  Federal  or    Chapter 
State,  to  the  contrary  notwithstanding.3 

After  laborious  effort,  it  has  been  found  impossi- 
ble to  separate  the  decisions  under  the  three  head- 
ings —  cases  in  which  it  was  claimed  that  the  rights 
and  privileges  of  the  complainant  were  abridged; 
cases  in  which  it  was  claimed  that  the  complainant 
had  been  deprived  of  life,  liberty,  or  property  with- 
out due  process  of  law;  and  cases  in  which  it  was 
claimed  that  the  citizen  had  been  denied  the  equal 
protection  of  the  law  —  for  in  almost  every  instance 
the  right  to  the  relief  asked  was  placed  on  all 
three  grounds.  Where  the  decision  was  adverse 
relief  was  of  course  denied  upon  all  three  of  the 
grounds  specified,  but  where  relief  was  granted  it 
was  sometimes  upon  one  ground,  sometimes  upon 
two,  sometimes  upon  all  three,  and  in  some  cases  the 
court  failed  to  specify  upon  which  of  the  grounds 
the  decision  rested. 

The  student  interested  in  the  further  pursuit  of 
this  inquiry  may  easily  satisfy  himself,  for,  sur- 
prising as  it  may  be,  out  of  the  three  hundred  cases 
decided,  only  about  thirty  decisions  have  sustained 
the  right  or  claim  asserted  under  the  XIV  Amend- 
ment. These  favorable  decisions  relate  to  discrim- 
inations against  negroes  in  State  laws  or  proceedings 
relating  to  the  constitution  of  juries;  to  discrim- 
inations against  Chinamen;  to  discriminating  State 
laws  concerning  taxation,  assessment,  rates,  or  regu- 
lation of  corporations;  to  discriminations  in  State 

s  The  decisions  of  the  United  States  Supreme  Court  under  the 
XIV  Amendment  are  listed  in  the  order  of  their  rendition  in  the 
Appendix  A  at  the  close  of  this  volume. 


208 


CITIZENSHIP 


Instruct- 

iveness 
of  cases 
rejecting 
claims. 


Particu- 
lar rights 
estab- 
lished. 


procedure ;  and  to  a  few  particular  rights.4  This  is 
the  pitiful  array  of  results  from  forty  years  of  liti- 
gation upon  amendments  which,  at  the  time  of  their 
enactment,  were  claimed  to  revolutionize  the  rela- 
tions of  the  Nation  and  the  States. 

In  the  great  mass  of  rejected  claims  will  be  found 
the  full  interpretation  placed  by  the  court  upon  these 
amendments.  A  list  of  authorities  is  hereto  ap- 
pended showing  what  has  been  claimed  under  the 
clause  which  provides: 

"No  State  shall  make  or  enforce  any  law  which 
shall  abridge  the  privileges  or  immunities  of  citizens 
of  the  United  States." 

Out  of  all  the  cases  decided  by  the  Supreme  Court 
in  which  the  abridgment  of  rights  has  been  asserted, 
the  claim  has  been  sustained  in  but  a  few  cases,  and 
of  the  cases  favorably  decided  seven  relate  to  the 

*  The  following  are  the  only  cases  decided  by  the  Supreme  Court 
of  the  United  States  sustaining  claims  set  up  under  the  XIII,  XIV, 
and  XV  Amendments: 

Discrimination  on  juries  against  negroes:  Strauder  v.  West 
Virginia,  (1879)  100  U.  S.  303;  Ex  p.  Virginia,  (1879)  100  U.  S. 
339;  Missouri  v.  Lewis,  (1879)  101  U.  S.  22;  Neal  v.  Delaware, 
(1880)  103  U.  S.  370;  Carter  V.  Texas,  (1900)  177  U.  S.  442; 
Rogers  v.  Alabama,  (1904)  192  U.  S.  226;  Tarrance  v.  Florida, 
(1903)  188  U.  S.  519. 

Discriminating  against  Chinamen:  Yick  Wo  v.  Hopkins,  (1886) 
118  U.  S.  356. 

Discriminating  State  laws  of  taxation,  assessment,  rates,  or 
regulations:  Santa  Clara  County  v.  Southern  Pac.  R.  Co.,  (1886) 
118  U.  S.  394;  California  v.  Central  Pac.  R.  Co.,  (1888)  127  U.  S. 
40;  Chicago,  etc.,  R.  Co.,  v.  Minnesota,  (1890)  134  U.  S.  418; 
Minneapolis  Eastern  R.  Co.  v.  Minnesota,  (1890)  134  U.  S.  467; 
Reagan  v.  Farmers'  L.  &  T.  Co.,  (1894)  154  U.  S.  362;  Missouri 
Pac.  R.  Co.  v.  Nebraska,  (1896)  164  U.  S.  403;  Covington,  etc., 
Turnpike  Road  Co.  v.  Sandford,  (1896)  164  U.  S.  578;  Gulf,  etc., 
R.  Co.  v.  Ellis,  (1897)  165  U.  S.  150;  Smyth  v.  Ames,  (1898)  169 
TJ.  S.  466;  Norwood  v.  Baker,  (1898)  172  U.  S.  269;  Dewey  v. 


CITIZENSHIP  209 


rights  of  negroes  in  the  constitution  of  juries.  The 
rights  established  in  other  cases  were :  The  right  of 
a  lawyer  to  practice  law ;  the  right  of  a  Chinaman  to 
conduct  a  laundry  without  discrimination;  the  right 
of  railroads  and  other  corporations  to  equal  protec- 
tion against  discriminating  State  taxes  or  other  re- 
quirements, and  the  right  of  a  litigant  to  have  due 
notice  of  a  suit.  Yet  the  whole  range  of  the  rights 
of  citizens  has  been  traversed  to  attain  this  result. 
We  have  already  had  occasion  to  point  out  that, 
in  the  earliest  construction  placed  upon  these  amend-  SS?.  g< 
ments,  it  was  declared  that  their  main  purpose  was 
to  give  definitions  of  citizenship  of  the  United  States 
and  of  the  States  and  to  protect  the  newly  enfran- 
chised race  against  discriminating  legislation  by  the 
States.  At  the  risk  of  endless  reiteration,  we  must 
again  recur  to  the  language  of  the  court  in  the 
Slaughter-House  Cases,  declaring  that  the  amend- 
ments did  not  bring  within  the  power  of  Congress 
the  entire  domain  of  civil  rights  theretofore  belong- 
ing exclusively  to  the  States,  or  transfer  the  security 
and  protection  of  all  civil  rights  from  the  States  to 


Des  Homes,  (1899)  173  U.  S.  193;  Lake  Shore,  etc.,  R.  Co.  V. 
Smith,  (1899)  173  U.  S.  684  (selling  1,000-mile  tickets);  Getting 
V.  Kansas  City  Stock  Yards  Co.,  (1901)  183  U.  S.  79;  Louisville, 
etc.,  Ferry  Co.  v.  Kentucky,  (1903)  188  U.  S.  385. 

Discrimination  in  State  procedure:  Prout  v.  Starr,  (1903)  188 
U.  S.  537;  Roller  v.  Holly,  (1900)  176  U.  S.  398;  Smyth  v.  Ames, 
(1898)  169  U.  S.  466. 

No  due  process:  Scott  v.  McNeal,  (1894)  154  U.  S.  34  (man 
supposed  to  be  dead;  was  alive). 

Particular  rights:  Royall  v.  Virginia,  (1886)  116  U.  S.  572 
(abridging  right  to  practice  profession)  ;  Barren  v.  Burnside,  (1887) 
121  U.  S.  186;  Allgeyer  v.  Louisiana,  (1897)  165  U.  S.  579  (abridg- 
ing right  of  contract)  ;  Blake  v.  McClung,  (1898)  172  U.  S.  239 
(discrimination  between  citizens  of  States). 
14 


210  CITIZENSHIP 


chapter    the  Federal  government.    Their  whole  function  was 

'        to  bestow  on  Congress  power  to  protect  United 

States  citizens  from  hostile  legislation  by  the  States. 

dpies  o"n'  With  this  as  the  keynote  we  come  to  a  considera- 
tion of  the  decisions  above  referred  to.  The  States 
have  been  held  to  possess  very  large  powers  of  legis- 
lation, subject  only  to  the  condition  that  they  shall 
not  abridge  the  privileges  and  immunities  of  citi- 
zens of  the  United  States  or  deprive  any  person  of 
life,  liberty,  or  property  without  due  process  of  law. 
The  basic  principle  on  which  all  these  decisions  rest 
is  that  prior  to  the  amendments,  the  control  of  all 
these  subjects  resided  in  the  States ;  that  the  amend- 
ments do  not  justify  establishing  a  Federal  code  of 
municipal  law  regulative  of  all  private  rights  be- 
tween man  and  man  in  society,  or  make  Congress 
take  the  place  of  State  legislatures;  that  the  legis- 
lation which  Congress  is  authorized  to  enact  is 
not  general  legislation  upon  the  rights  of  citizens, 
but  corrective  legislation  on  the  States,  such  legisla- 
tion as  may  be  necessary  to  counteract  State  legis- 
lation prohibited  by  the  amendments ;  and  that,  sub- 
ject to  this  restriction,  the  power  of  the  States  to 
legislate  on  all  these  subjects  is  as  unqualified  as  it 
was  before  the  amendments.5 

B  "  The  Fourteenth  Amendment  did  not  radically  change  the 
whole  theory  of  the  relations  of  the  State  and  Federal  governments 
to  each  other,  and  of  both  governments  to  the  people.  The  same 
person  may  be  at  the  same  time  a  citizen  of  the  United  States 
and  a  citizen  of  a  State.  Protection  to  life,  liberty,  and  property 
rests  primarily  with  the  States,  and  the  amendment  furnishes  an 
additional  guaranty  against  any  encroachment  by  the  States  upon 
those  fundamental  rights  which  belong  to  citizenship,  and  which 
the  State  governments  were  created  to  secure.  The  privileges  and 
immunities  of  citizens  of  the  United  States,  as  distinguished  from 


CITIZENSHIP  211 


All  the  opinions  rendered  deal  with  this  general 
idea,  and  we  shall  proceed  to  consider  in  detail  the 
decisions  under  the  following  heads : 

1.    Of  the  Regulation  of  Ordinary  Business  Pursuits 
by  the  States. 

a.    To  establish  slaughter-houses.6 
The  opinion  delivered  in  the  Slaughter-House 
Cases  is  perhaps  the  most  thorough  and  exhaustive 
discussion  to  he  found  of  the  reserved  police  powers 
of  the  State  in  the  Union.    Further  citations  from 
it  are  unnecessary  in  view  of  what  has  preceded. 
&.     To  control  the  regulation  of  laundries.7 
In  the  cases  of  Barbier  v.  Connolley  and  Soon  Limitation 

9  of  police 

Hing  v.  Crowley,  cited  below,  it  was  declared  that  £™er 
the  XIV  Amendment  did  not  impair  the  police  pow-  laundries- 
ers  of  the  States  and  that  they  might  prohibit  laun- 
dries within  certain  limits  between  certain  hours; 
but,  in  the  later  case  of  YicJc  Wo  v.  Hopkins,  this 
police  power  was  limited  by  the  requirements  that 
such  laws,  and  indeed  any  laws  regulating  the  con- 
duct of  business,  should  not  by  their  terms  or  in  their 
administration  discriminate  between  classes  of  peo- 
ple engaged  in  the  business.    Yick  Wo  was  a  China- 

the  privileges  and  immunities  of  citizens  of  the  States,  are  indeed 
protected  by  it;  but  those  are  privileges  and  immunities  arising 
out  of  the  nature  and  essential  character  of  the  national  govern- 
ment, and  granted  or  secured  by  the  Constitution  of  the  United 
States."  In  re  Kemmler,  (1890)  136  U.  S.  448;  Maxwell  v.  Dow, 
(1900)  176  U.  S.  593.  See  also  U.  S.  v.  Cruikshank,  (1875)  92 
U.  S.  554;  Mobile,  etc.,  R.  Co.  V.  Tennessee,  (1894)  153  U.  S.  506; 
Giozza  v.  Tiernan,  (1893)  148  U.  S.  662. 

e  Slaughter-House  Cases,   (1872)    16  Wall,    (U.  S.)    36. 

TBarbier  v.  Connolly,  (1885)  113  U.  S.  27;  Soon  Hing  v.  Crow- 
ley,  (1885)  113  U.  S.  703;  Yick  Wo  v.  Hopkins,  (1886)  118  U.  S. 
356. 


212  CITIZENSHIP 


Oapter    man  ^  gan  Francisco,  and  an  ordinance  of  the  city, 
v'        either  by  its  terms  or  in  its  administration,  discrimi- 


nated against  Chinese.  That  was  held  to  deny  to  a 
class  the  equal  protection  of  the  law  in  violation  of 
the  amendment. 

c.    Eegulation  of  liquor  traffic.8 

The  cases  relating  to  the  control  of  liquor  traffic 
traffic1—  aor  by  the  States  are  numerous.  They  are  unanimous 
that  the  right  to  traffic  in  intoxicating  drinks  is  not 
a  privilege  or  immunity  which  the  XIV  Amendment 
forbids  a  State  from  abridging  unless  the  law  so 
operates  as  to  amount  to  a  deprivation  of  property 
without  compensation  or  violates  the  provisions 
against  interstate  commerce.  In  the  License  Cases 
Mr.  Justice  Greer  said:  "Police  power  which  is 
exclusively  in  the  States  is  alone  competent  to  the 
correction  of  these  great  evils,"  and  in  the  case  of 
Foster  v.  Kansas  it  was  said  that  the  constitutional 
power  of  the  States  to  prohibit  the  manufacture  and 
sale  of  intoxicating  liquors  is  no  longer  an  open 
question.  The  States  have  the  power  to  regulate 
and  even  to  prohibit  the  sale  of  liquors  ;  but  a  num- 
ber of  cases  will  be  found,  arising  under  the  inter- 


s  License  Cases,  (1847)  5  How.  (U.  S.)  504;  Bartemeyer  v. 
Iowa,  (1873)  18  Wall.  (U.  S.)  133;  Boston  Beer  Co.  v.  Massachu- 
setts, (1877)  97  U.  S.  25,  33;  Foster  v.  Kansas,  (1884)  112  U.  S. 
205;  Schmidt  v.  Cobb,  (1886)  119  U.  S.  286;  Mugler  V.  Kansas, 
(1887)  123  U.  S.  623;  Bowman  V.  Chicago,  etc.,  R.  Co.,  (1888) 
125  U.  S.  465;  Kidd  v.  Pearson,  (1888)  128  U.  S.  1;  Eilenbecker 
V.  District  Ct.,  (1890)  134  U.  S.  31;  Leisy  v.  Hardin,  (1890)  135 
U.  S.  100;  Lyng  v.  Michigan,  (1890)  135  U.  S.  161;  Crowley  v. 
€hristensen,  (1890)  137  U.  S.  91;  Reymann  Brewing  Co.  v.  Brister, 
(1900)  179  U.  S.  445;  In  re  Rahrer,  (1891)  140  U.  S.  545;  Giozza 
v.  Tiernan,  (1893)  148  U.  S.  657;  Gray  v.  Connecticut,  (1895) 
159  U.  S.  74;  Cronin  v.  Adams,  (1904)  192  U.  S.  108. 


CITIZENSHIP  213 


state   com- 
merce. 


state  commerce  law,  which  forbid  the  States  from    Chapter 
interfering  with  liquor  passing  through  or  brought          ' 
into  a  State  while  it  is  in  the  condition  of  commer- 
cial transit. 

d.  To  inspect  food  supplies.9 

Inspection  laws  passed  by  the  State  to  secure  £? 
pure  food  for  its  citizens  are  valid,  but  inspection 
laws  which  go  beyond  this  purpose  and  either  dis- 
criminate between  classes  or  interfere  with  inter- 
state commerce  must  yield  to  the  supremacy  of  the 
Federal  law.  The  decisions  on  this  question  are 
numerous,  and  each  case  which  shall  arise  hereafter 
must  depend  upon  the  phraseology  and  effect  of  the 
law  under  consideration. 

e.  Authority  to  guard  against  the  introduction 
of  infected  cattle  from  other  States.1 

This  has  been  sustained  in  a  number  of  cases,  as  cattle- 
has  also  a  law  which  imposes  damages  upon  owners 
for  damage  done  by  cattle  or  other  stock  in  the 
highways. 

/.     To  prohibit  business  on  Sunday.2 

The  right  of  the  State  to  prohibit  business  on 
Sunday  has  been  upheld  on  the  same  ground  of 
police  powers. 

g.  For  the  same  reason,  to  require  licenses  from 
venders.3 

» Powell  v.  Pennsylvania,  (1888)  127  U.  S.  678;  Minnesota  v. 
Barber,  (1890)  136  U.  S.  318;  Brimmer  v.  Rebman,  (1891)  138 
U.  S.  78. 

iKimmish  v.  Ball,  (1889)  129  U.  S.  222;  Jones  v.  Brim,  (1897) 
165  U.  S.  180;  Rasmussen  v.  Idaho,  (1901)  181  U.  S.  198;  Morris 
v.  Hitchcock,  (1904)  194  U.  S.  384;  Reid  v.  Colorado,  (1902)  187 
U.  S.  137. 

zHennington  v.  Georgia,  (1896)  163  U.  S.  299;  Petit  v.  Minne- 
sota, (1900)  177  U.  S.  164. 

sfirennan   v.    Titusville,    (1894)    153    U.    S.    289;    Gundling   v. 


214  CITIZENSHIP 


Chapter         hf     The  right  to  regulate  the  flow  of  oil  wells 

! —  and  the  like.4 

i.  Also  the  right  to  forbid  the  unlawful  com- 
bination of  citizens  to  injure  others  in  their  repu- 
tation, trade,  or  business,  or  combinations  known  as 
trusts  deemed  destructive  of  competition.5 

k.  To  prescribe  regulations  concerning  many 
other  things.6 

2.     The  Right  to  Regulate  Woman's  Rights. 

practice  of  One  of  the  first  claims  decided  was  that  of  a 
suffrage.  woman,  in  Bradwell  v.  State.1  She  sought  to  compel 
the  State  of  Illinois  to  admit  her  to  the  practice  of 
law,  but  the  court  promptly  held  that  while  she  was 
a  citizen  it  was  within  the  power  of  the  State  to  de- 
Chicago,  (1900)  177  U.  S.  183;  Emert  V.  Missouri,  (1895)  156 
U.  S.  296;  W.  W.  Cargill  Co.  v.  Minnesota,  (1901)  180  U.  S.  452. 

*  Montana  Co.  v.  St.  Louis  Min.,  etc.,  Co.,  (1894)  152  U.  S.  160; 
Holden  v.  Hardy,  (1898)  169  U.  S.  366;  Backus  v.  Fort  St.  Union 
Depot  Co.,  (1898)  169  U.  S.  557;  Ohio  Oil  Co.  v.  Indiana,  (1900) 
177  U.  S.  190;  St.  Louis  Consol.  Coal  Co.  v.  Illinois,  (1902)  185 
U.  S.  203;  Atkin  v.  Kansas,  (1903)  191  U.  S.  207. 

5Aikens  v.  Wisconsin,  (1904)  195  U.  S.  194;  Smiley  V.  Kansas, 
(1905)  196  U.  S.  447. 

« Markets:     Natal  v.  Louisiana,    (1891)    139  U.  S.  621. 

Dairies:     Petit  v.  Minnesota,   (1900)-  177  U.  S.  164. 

Railroads  in  streets:  Richmond,  etc.,  R.  Co.  v.  Richmond,  (1877) 
96  U.  S.  521;  New  York  v.  Squire,  (1892)  145  U.  S.  175. 

Grade  crossings:  New  York,  etc.,  R.  Co.  v.  Bristol,  (1894)  151 
U.  S.  556. 

Fishing:     Lawton  v.  Steele,   (1894)   152  U.  S.  133. 

Inspecting  mines:  Montana  Co.  v.  St.  Louis  Min.,  etc.,  Co., 
(1894)  152  U.  S.  160. 

Restraining  contracts:  Allgeyer  V.  Louisiana,  (1897)  165  U.  S. 
579. 

Marriage:     Andrews  v.  Andrews,   (1903)   188  U.  S.  14. 

Various  objects:  Wilson  v.  Eureka  City,  (1899)  173  U.  S.  33; 
Lake  Shore,  etc.,  R.  Co.  v.  Smith,  (1899)  173  U.  S.  684. 

7  Bradwell  v.  State,   (1872)    16  Wall.    (U.  S.)    130. 


CITIZENSHIP  215 


tennine  whether  she  should  be  entitled  to  practice.    Chapter 
In  the  case  of  Miner  v.  Happersett7*  in  the  same       V' 
volume,  a  woman  claimed  the  right  of  suffrage,  but 
the  courts  held  that  the  right  of  suffrage  was  under 
the  control  of  the  State. 

3.    The  Right  to  Regulate  the  Practice  of  Profes- 
sions.8 

Laws  requiring  professional  men  to  submit  to  Exami- 
nation, 

examination  to  procure  licenses  have  been  held  not  Jjj"* 
to  invade  any  rights  granted  to  them  by  the  Consti-  taxation- 
tution;  but  in  one  case  the  conviction  of  a  lawyer 
refusing  to  pay  a  tax  was  held  to  be  illegal  and  was 
set  aside,  and  he  was  discharged  on  habeas  corpus, 
because   the   tax   demanded   violated   the  contract 
clause  of  the  Constitution  by  the  manner  of  its 
imposition. 

4.     Of  Suffrage.9 

In  the  first  case  which  arose  under  the  XIV  dsfoL- 
Amendment  involving  the  right  of  suffrage,  the  Su-  vSe*  at 

rived    from 

7*  Minor  v.  Happersett,    (1874)   21  Wall.   (U.  S.)    162. 

sBradwell  v.  State,  (1872)  16  Wall.  (U.  S.)  130;  Dent  v.  West 
Virginia,  (1889)  129  U.  S.  114;  Royall  v.  Virginia,  (1886)  116 
U.  S.  572;  Gray  v.  Connecticut,  (1895)  159  U.  S.  74;  Reetz  V. 
Michigan,  (1903)  188  U.  S.  505. 

"The  power  of  the  State  to  provide  for  the  general  welfare  of 
its  people  authorizes  it  to  prescribe  all  such  regulations  as,  in  its 
judgment,  will  secure  or  tend  to  secure  them  against  the  conse- 
quences of  ignorance  and  incapacity  as  well  as  of  deception  and 
fraud.  ...  If  they  are  appropriate  to  the  calling  or  profession, 
and  attainable  by  reasonable  study  or  application,  no  objection  to 
their  validity  can  be  raised  because  of  their  stringency  or  diffi- 
culty. It  is  only  when  they  have  no  relation  to  such  calling  or 
profession,  or  are  unattainable  by  such  reasonable  study  and  appli- 
cation, that  they  can  operate  to  deprive  one  of  his  right  to  pursue 
u  lawful  vocation."  Dent  V.  West  Virginia,  (1889)  129  U.  S.  122. 

» Minor  v.  Happersett,    (1874)    21  Wall.    (U.  S.)    162;   U.  S.  v. 


216  CITIZENSHIP 


Chapter  preme  Court  was  very  positive  in  its  statement  that 
v>  the  right  of  suffrage  was  derived  exclusively  from 
the  States ;  that  it  was  not  an  incidental  privilege  or 
immunity  of  Federal  citizenship  before  the  adoption 
of  the  XIV  Amendment;  that  the  XIV  Amend- 
ment did  not  add  to  the  privileges  or  immunities 
which  it  undertook  to  protect;  that  suffrage  was  not 
even  coextensive  with  State  citizenship ;  that  neither 
the  Constitution  of  the  United  States  nor  the  XIV 
Amendment;  made  all  citizens  voters ;  and  that  a  pro- 
vision in  the  State  constitution  limiting  suffrage  to 
male  citizens  did  not  violate  the  Federal  Constitu- 
tion. In  the  next  case  in  which  suffrage  was  con- 
sidered it  was  declared  that  the  XV  Amendment 
conferred  no  right  to  vote,  and  that  it  merely  in- 
vested citizens  of  the  United  States  with  the  right 

Reese,  (1875)  92  U.  S.  214-217;  U.  S.  V.  Cruikshank,  (1875)  92 
U.  S.  542-554;  Ex  p.  Yarbrough,  (1884)  110  U.  S.  651;  Neal  v. 
Delaware,  (1880)  103  U.  S.  370;  U.  S.  v.  Waddell,  (1884)  112 
U.  S.  76;  McPhersori  v.  Blacker,  (1892)  146  U.  S.  1;  Taylor  v. 
Beckham,  (1900)  178  U.  S.  548;  Mason  v.  Missouri,  (1900)  179 
U.  S.  328;  Wiley  v.  Sinkler,  (1900)  179  U.  S.  58;  Swafford  v. 
Templeton,  (1902)  185  U.  S.  487;  Gibson  v.  Mississippi,  (1896) 
162  U.  S.  565;  Williams  V.  Mississippi,  (1898)  170  U.  S.  213; 
Giles  v.  Harris,  (1903)  189  U.  S.  486;  Green  v.  Mills,  (1895)  69 
Fed.  Rep.  852,  159  U.  S.  651;  James  v.  Bowman,  (1903)  190  U.  S. 
127;  Pope  v.  Williams,  (1904)  193  U.  S.  621;  Report  of  Commit- 
tee on  Elections,  58th  Congress,  Cong.  Record,  March  18,  1904, 
pp.  35,  92,  93. 

"The  amendment  did  not  add  to  the  privileges  and  immunities 
of  a  citizen.  It  simply  furnished  an  additional  guaranty  for  the 
protection  of  such  as  he  already  had.  No  new  voters  were  neces- 
sarily made  by  it.  Indirectly  it  may  have  had  that  effect,  because 
it  may  have  increased  the  number  of  citizens  entitled  to  suffrage 
under  the  constitution  and  laws  of  the  States,  but  it  operates  for 
this  purpose,  if  at  all,  through  the  States  and  the  State  laws,  and 
not  directly  upon  the  citizen."  Minor  v.  Happersett,  (1874)  21 
Wall.  (U.  S.)  171. 


CITIZENSHIP  217 


of  exemption  from  discrimination  against  them  (in    Chapter 
the  exercise  of  suffrage)  by  reason  of  race,  color,          ' 
or  previous  condition;  but  that  the  power  of  Con- 
gress to  legislate  at  all  concerning  voting  at  State 
elections  rests  on  the  XV  Amendment,  and  can  be 
exercised  only  by  providing  punishment  when  the 
wrongful  refusal  is  because  of  the  race  or  color  of 
the  voter. 

In  the  case  of  U.  S.  v.  Cruikshank 1  it  was  said, 
referring  to  the  two  cases  above:  "The  Consti- 
tution of  the  United  States  has  not  conferred  the 
right  of  suffrage  upon  any  one,  and  the  United 
States  have  no  voters  of  their  own  creation  in  the 
States."  In  the  later  case  of  Ex  p.  Yarbrough,  it 
was  said  that  there  were  cases  in  which  the  XV 
Amendment  substantially  conferred  the  right  to  vote 
on  the  negro,  as  where  it  was  held,  in  the  case  of 
Neal  v.  Delaware?  to  annul  the  word  "white"  in 
the  State  constitution. 

In  the  case  of  Ex  p.  Yarbrough 3  it  was  con- 
tended  that  "the  right  to  vote  for  a  member  of  Con-  m°enngress" 
gress  is  not  dependent  upon  the  Constitution  and 
laws  of  the  United  States,  but  is  governed  by  the 
laws  of  each  State  respectively."  The  Supreme 
Court  denied  that,  and  answered  it  as  follows: 
"It  is  not  correct  to  say  that  the  right  to  vote  for  a 
member  of  Congress  does  not  depend  on  the  Con- 
stitution of  the  United  States.  The  office,  if  it  be 
properly  called  an  office,  is  created  by  that  Constitu- 
tion and  by  that  alone.  It  also  declares  how  it 

1  (1875)  92  U.  S.  542. 

2  (1880)   103  U.  S.  370. 
8  (1884)   110  U.  S.  651. 


218  CITIZENSHIP 


Chapter    shall  be  filled,  namely,  by  election.    Its  language  is : 

I: 'The  House  of  Eepresentatives  shall  be  composed 

of  members  chosen  every  second  year  by  the  people 
of  the  several  States,  and  the  electors  in  each  State 
shall  have  the  qualifications  requisite  for  electors  of 
the  most  numerous  branch  of  the  State  legislature.' 
(Art  I,  Sec.  2.)  The  States,  in  prescribing  the 
qualifications  of  voters  for  the  most  numerous 
branch  of  their  own  legislatures,  do  not  do  this  with 
reference  to  the  election  for  members  of  Congress, 
nor  can  they  prescribe  the  qualification  for  voters 
for  those  eo  nomine." 

jTresidfntiai  In  the  case  of  McPherson  v.  Blacker?*  it  was 
said  that  the  right  of  a  citizen  of  the  United  States, 
from  the  time  of  his  majority,  to  vote  for  presi- 
dential electors,  is  a  right  secured  to  him  by  Article 
II  of  the  Constitution  and  is  unaffected  by  the 
XIV  and  XV  Amendments.  So  that,  whatever 
may  be  said  concerning  the  sources  from  which  the 
right  of  suffrage  is  derived,  it  is  certain  that  the 
right  to  vote  for  members  of  the  House  of  Eepre- 
sentatives and  for  presidential  electors  is  derived 
from  the  Constitution  of  the  United  States  itself  and 
not  from  the  States. 

The  framers  of  the  Constitution  saw  fit  to  ascer- 
tain the  Federal  electorate  by  reference  to  a  State 
rule  of  selection,  but  that  does  not  make  the  right 
originate  with  the  State  any  more  than  the  measur- 
ing of  cloth  with  a  yardstick  makes  the  cloth  the 
product  of  a  machine  shop  instead  of  a  woolen 
factory. 

a*  (1892)    146  U.   S.    1. 


CITIZENSHIP  219 


In  two  recent  cases  (Wiley  v.  Sinkler 4  and  Swaf-    chapter 
ford  v.  Templeton5),  instituted  in  federal  courts  ! 


for  alleged  interference  with  the  rights  of  the  plain- 
tiffs to  vote  at  an  election  for  members  of  the  House  courts.1 
of  Representatives,  the  jurisdiction  of  the  federal 
courts  has  been  sustained,  and  the  right  of  the  citi- 
zens to  vote  for  a  member  of  the  House  of  Repre- 
sentatives has  been  declared  to  have  its  origin  in 
federal  law ;  but  the  Supreme  Court  has  steadily  re- 
fused to  entertain  jurisdiction  of  questions  of  suf- 
frage relating  to  State  elections,  where  it  was  not 
pointed  out  that  the  law  discriminated  against  a 
citizen  on  account  of  his  race,  color,  or  previous 
condition. 

In  the  case  of  Gibson  v.  Mississippi,*  it  was  de- 
clared that  States  are  empowered  to  qualify  the 
right  of  suffrage  by  conditions  confining  it  to  males, 
to  freeholders,  to  citizens,  to  persons  within  certain 
ages,  or  to  those  having  educational  qualifications; 
the  only  limitation  upon  the  power  of  the  States 
being  that  the  laws  shall  not  in  form  or  in  adminis- 
tration discriminate  between  voters  on  account  of 
race,  color,  or  condition. 

In  Williams  v.  Mississippi7  the  court  declared  0^oswrbongy 
that  provisions  of  a  State  constitution  prescribing 


Power  of 
to 


suffrage  which  were  in  themselves  unobjectionable, 
and  concerning  the  administration  of  which  no  spe- 
cific wrong  was  alleged,  would  not  be  declared  null 
merely  because  there  was  a  possibility  that  in  their 

<  (1900)  179  U.  S.  58. 

B  (1902)  185  U.  S.  487. 

«  (1896)  162  U.  S.  565. 

7  (1898)  170  U.  S.  213. 


220  CITIZENSHIP 


chapter    administration  wrong  might  be  committed  under 
v'       them. 


in  the  case  of  Pope  v.  Williams,8  very  recently 
decided,  a  State  law  requiring  voters  to  give  twelve 
months'  notice  of  an  intention  to  claim  citizenship 
was  held  not  to  be  violative  of  the  amendment ;  and 
even  in  the  case  of  Wiley  v.  Sirikler,  where  the 
right  asserted  was  held  to  be  a  Federal  right,  the 
court  decided  that  in  order  to  make  a  case  of  prima 
facie  invasion  of  his  right,  the  plaintiff  must  show 
not  only  that  he  was  entitled  to  vote,  but  that  he  had 
complied  with  the  State  registration  laws  which 
prescribe  the  conditions  precedent  to  the  exercise  of 
that  right. 

^n  sundry  other  cases  recently  decided,  the  effort 
has  been  made  to  induce  the  Supreme  Court  to 
consider  the  claims  and  to  redress  the  wrongs  of 
persons  who  alleged  that  they  had  been  unlawfully 
deprived  of  suffrage;  but  the  court  has  refused  to 
entertain  jurisdiction,  declaring  that  the  questions 
raised  are  political  and  call  for  redress  which  can 
be  given  only  by  the  legislative  and  executive  depart- 
ments of  the  government. 

lack  In  the  recent  case  of  Giles  v.  Harris?  it  was  said : 
°<>  ?3ieve.  ' '  The  traditional  limits  of  proceedings  in  equity  have 
not  embraced  a  remedy  for  political  wrongs."  And 
again:  "In  determining  whether  a  court  of  equity 
can  take  jurisdiction,  one  of  the  first  questions  is 
what  it  can  do  to  enforce  any  order  that  it  may 
make.  This  is  alleged  to  be  the  conspiracy  .of  a 
State,  although  the  State  is  not  and  could  not  be 

8  (1904)    193  U.  S.  621. 
»  (1903)  189  U.  S.  486. 


CITIZENSHIP  221 


made  a  party  to  the  bill.  The  Circuit  Court  has  no  Chapter 
constitutional  power  to  control  its  action  by  any  di-  - 
rect  means ;  and  if  we  leave  the  State  out  of  consider- 
ation, the  court  has  as  little  practical  power  to  deal 
with  the  people  of  the  State  in  a  body.  The  bill  im- 
ports that  the  great  mass  of  the  white  population 
intends  to  keep  the  blacks  from  voting.  To  meet 
such  an  intent  something  more  than  ordering  the 
plaintiff's  name  to  be  inscribed  upon  the  lists  of  1902 
will  be  needed.  .  .  .  Unless  we  are  prepared  to 
supervise  the  voting  in  that  State  by  officers  of  the 
court,  it  seems  to  us  that  all  that  the  plaintiff  could 
get  from  equity  would  be  an  empty  form.  Apart 
from  damages  to  the  individual,  relief  from  a  great 
political  wrong,  if  done,  as  alleged,  ~by  the  people  of 
a  State  and  the  State  itself,  must  be  given  ~by  them 
or  Toy  the  legislative  and  political  department  of  the 
government  of  the  United  States/' 

While  this  has  been  the  attitude  of  the  Supreme  Attitude 

of  the 

Court  upon  suffrage  questions,  sundry  States  have  ge°pursee  of 
been  legislating  upon  the  subject  in  such  a  way,  £ 
that,  on  one  pretext  or  another,  large  bodies  of  citi- 
zens who  had  exercised  the  right  of  suffrage  unin- 
terruptedly for  many  years  under  pledges  given  to 
Congress  by  the  States,  when  they  were  restored  to 
their  relations  in  the  Union,  that  their  suffrage 
never  would  be  curtailed,  have  been  deprived  of 
their  right  to  vote.  Despairing  of  obtaining  any  re- 
lief from  the  Federal  judiciary,  the  attempt  has  been 
made  to  transfer  the  controversy  to  the  House  of 
Eepresentatives.  In  the  58th  Congress  (1903-1905) 
contests  were  made  up  from  the  State  of  South 
Carolina  in  the  House  of  Eepresentatives,  which,  by 


222  CITIZENSHIP 

chapter    the  terms  of  the  Constitution,  is  made  the  sole  judge 

1 —  of  the  elections,  returns,  and  qualifications  of  its 

members.  (Article  I,  Section  5,  Clause  1.)  The 
issue  thus  presented  challenged  the  right  of  any  of 
the  sitting  representatives  of  South  Carolina  to  hold 
their  seats  because  of  alleged  violations  of  the  Con- 
stitution of  the  United  States  in  the  State  consti- 
tution and  the  laws  regulating  suffrage  under  which 
they  were  elected.  The  issues  were  squarely  pre- 
sented and  called  for  a  decision  by  the  House;  but 
the  committee  on  elections  made  a  report  in  which 
it  stated  that  the  cases  involved  grave  constitutional 
questions,  which,  if  decided  in  favor  of  the  claim- 
ants, would  go  to  the  very  foundation  of  the  State 
government  of  South  Carolina  and  would  perhaps 
affect  not  only  her  representation,  but  that  of  the 
other  States ;  that  the  House  should  hesitate  about 
taking  a  step  which  might  be  so  far-reaching  in  its 
consequences,  until  the  legal  questions  involved  were 
decided  by  the  courts  intrusted  with  the  duty  of  con- 
stitutional interpretation,  and  that  the  courts  might 
more  safely  be  relied  upon  for  correct  decision  than  a 
transitory  and  ever-changing  unprofessional  body 
like  the  House  of  Eepresentatives.  And  so  the  mat- 
ter of  suffrage  rests;  the  courts  declining  to  pass 
upon  it  as  a  political  question,  and  Congress  insist- 
ing that  it  is  a  judicial  question.  Meanwhile  a  great 
body  of  citizens  whose  very  political  being  depends 
upon  a  decision  are  left  without  any  tribunal  to 
decide  their  rights. 

?oeras?ndif-         The  historian  of  our  times  may  be  at  a  loss  to 
forenegroas   understand  how  a  nation  so  powerful  for  self-preser- 
vation, and  so  insistent  upon  the  establishment  of 


CITIZENSHIP  223 


negro  suffrage,  afterwards  became  so  weak  and  in- 
different  to  providing  means  for  its  enforcement. 
It  will  be  plain  to  him,  if  he  recalls  the  facts  that 
the  bestowal  of  suffrage  upon  a  great  mass  of  igno- 
rant people  was,  when  it  was  done,  the  product  of 
war  passions  rather  than  of  reason,  and  that  after- 
wards those  war  passions  which  gave  rise  to  it  sub- 
sided, but  race  prejudices  survived  and  have  brought 
the  whites  in  the  lately  antagonistic  sections  of  our 
country  together  against  an  alien  race.  Under  the 
influence  of  those  racial  affinities,  the  whites  of  the 
triumphant  section  have  resolved  not  to  oppose  their 
former  antagonists,  but  brethren  in  race,  in  the  ef- 
fort to  preserve  white  supremacy  in  all  parts  of  the 
Union ;  and  have  even  come  to  look  upon  the  bestowal 
of  suffrage  upon  the  negro  as  a  great  mistake. 

Negro  suffrage  has  been  pronounced  a  failure  JJSSge 
by  men  high  in  the  trust  and  confidence  of  the  politi-  i 
cal  party  which  bestowed  it;   so  pronounced,  be- 
cause it  is  evident  to  any  student  of  our  conditions 
that  the  negro  is  incapable  of  maintaining  his  right 
and  has  no  considerable  body  of  disinterested  white 
friends  to  champion  his  cause. 

This  brings  us,  as  related  to  the  question  of 
suffrage,  to  consideration  of  the  second  section  of 
the  XIV  Amendment,  which  deals  with  the  reduction 
of  representation  of  the  States  in  Congress,  under 
certain  circumstances. 

Reduction  of  the  Representation  of  the  States  in 
Congress. 

Under  the  Constitution  of  the  United  States,  as 
it  was  adopted  and  remained  in  force  for  seventy- 


224  CITIZENSHIP 


Chapter    njne  years  (Article  I,  Section  2,  Clause  3),  repre- 
'        sentation  in  Congress  was  apportioned  among  the 


several  States  according  to  their  numbers,  deter- 
ierofAtrhe  mined  by  adding  to  the  whole  number  of  free  per- 
tiollf '  sons,  including  those  bound  to  service  for  a  term  of 
years,  and  excluding  Indians  not  taxed,  three-fifths 
of  all  other  persons.  The  words  "all  other  per- 
sons" meant  slaves.  The  framers  of  the  Constitu- 
tion had  an  aversion  to  using  the  term  slave  or 
slavery  in  the  instrument.  The  representation 
which  the  States  should  have,  respectively,  in  Con- 
gress, led  to  long  and  trying  discussions  in  the  con- 
vention which  framed  the  Constitution.  The  basis 
finally  adopted  was  a  compromise  which  gave  the 
slave  States  representation  for  three-fifths  of  their 
slave  population.  But  the  people  of  the  free  States 
never  acquiesced  in  the  justice  of  this  basis,  and  it 
was  a  constant  source  of  jealousy  and  friction  be- 
tween the  sections. 

Sted  by  While  the  XIII  Amendment  abolished  slavery,  it 
conferred  no  citizenship  on  anybody  and  effected 
no  change  in  the  basis  of  representation.  The  XIV 
Amendment  was  the  work  of  the  triumphant  free 
States  and  was  arranged  to  suit  themselves.  The 
slave  States  were  virtually  excluded  from  any  voice 
in  the  discussion  of  the  new  basis  of  representation. 
Many  ideas  were  advanced  for  the  new  basis.  One 
proposition  was  to  determine  representation  by  the 
number  of  votes  actually  cast  at  general  elections; 
another,  that  representation  should  be  based  on  the 
number  of  males  of  voting  age  in  each  State.  Fi- 
nally the  new  basis  adopted  the  words  of  the  old  Con- 
stitution, omitting  all  references  to  taxes,  or  persons 


CITIZENSHIP  225 


bound  in  service,  and  excluding  from  the  computa- 
tion of  numbers  only  Indians  not  taxed.  This  was 
followed  by  a  proviso  authorizing  Congress  to  re- 
duce the  representation  from  any  State  if  it  should 
deny  to  any  of  its  male  inhabitants,  twenty-one 
years  of  age  and  citizens  of  the  United  States,  the 
right  to  vote  at  certain  elections,  or  in  any  way 
abridge  the  same,  except  for  participation  in  rebel- 
lion or  other  crime.  The  elections  referred  to  were 
(1)  elections  of  electors  of  President  and  Vice- 
President  of  the  United  States  or  representatives  in 
Congress;  (2)  elections  of  the  executive  and  judi- 
cial officers  of  a  State  or  members  of  the  legislature. 
The  reduction  was  to  be  effected  by  ascertaining  the 
number  of  such  male  citizens  so  deprived  or 
abridged  of  suffrage  in  the  elections  named,  and  re- 
ducing the  congressional  representation  of  the  State 
in  the  proportion  which  the  number  of  males  de- 
prived of  suffrage  might  bear  to  the  whole  number 
of  male  citizens  twenty-one  years  of  age  in  such 
State.  The  fifth  section  of  the  amendment  empow- 
ered Congress  to  enforce  these  provisions  by  appro- 
priate legislation. 

Let  us  examine  critically  the  circumstances  under 
which  this  power  to  reduce  the  representation  of  a 
State  arises. 

First,  What  denial  or  abridgment  of  suffrage  by 
the  State  calls  the  power  into  play? 

Second,  Whether  the  denial  or  abridgment  of  the 
suffrage  of  a  class  must  be  for  any  particular  cause. 

Concerning  the  first :    The  denial  or  abridgment 
which  justifies  congressional  action  is  not  confined  Sonrofuc" 
to  Federal  elections.    Congress  may  act  for  the  de-  [f0pn.esenta* 

15 


226 


CITIZENSHIP 


Chapter 
V. 


Right  to 
abridge 
suffrage 
restricted 


Amend- 
ment. 


nial  or  abridgment  of  the  right  of  a  citizen  to  vote 
in  a  State  election  for  the  executive  and  judicial 
officers  of  the  State  or  for  members  of  the  legisla- 
ture. But  its  power  arises  only  when  the  right  of 
suffrage  of  a  male  citizen  is  denied  or  abridged. 
The  power  of  a  State  to  deny  suffrage  to  the  female 
sex  is  untouched  by  the  Constitution  of  the  United 
States.  So  also  is  the  power  of  the  State  to  pre- 
scribe the  electorate  in  all  State  elections  except  for 
the  executive  or  judicial  officers  of  a  State  or  mem- 
bers of  the  legislature. 

Concerning  the  second  inquiry,  it  will  be  ob- 
served that  whereas  representation  of  the  States  is 
primarily  determined  by  the  whole  number  of  per- 
sons in  each  State,  the  reduction  of  the  representa- 
tion of  the  State  can  only  be  made  for  her  denial  or 
abridgment  of  the  right  of  suffrage  to  male  citizens 
of  the  United  States  twenty-one  years  of  age,  and 
then  in  the  proportion  which  the  number  of  such 
male  citizens  shall  bear  to  the  whole  number  of  male 
citizens  twenty-one  years  of  age  in  such  State.  It 
will  also  be  observed  that  the  XIV  Amendment  left 
the  States  at  liberty  to  deny  or  abridge  this  right  for 
any  cause.  That  right  to  deny  or  abridge  the  right 
of  suffrage  is  still  unrestrained  except  by  the  XV 
Amendment.  It  forbids  the  United  States  or  any 
State  to  deny  or  abridge  it  on  account  of  race,  color, 
or  previous  condition  of  servitude,  but  it  does  not  go 
further.1 

i "  A  few  years'  experience  satisfied  the  thoughtful  men  who  had 
been  the  authors  of  the  other  two  amendments  that,  notwithstanding 
the  restraints  of  those  articles  on  the  States,  and  the  laws  passed 
under  the  additional  powers  granted  to  Congress,  these  were  inade- 
quate for  the  protection  of  life,  liberty,  and  property,  without  which 


CITIZENSHIP  227 


It  is  therefore  manifest  that  but  for  the  XV 
Amendment,  the  States  would  have  the  absolute 
power  to  fix  the  qualifications  of  voters  and  to 
limit  and  restrict  the  right  to  vote,  as  their  several 
interests  might  seem  to  demand,  and  that  the  States 
still  have  that  power  except  that  they  cannot  deny 
or  abridge  the  right  of  citizens  of  the  United  States 
to  vote,  on  account  of  their  race,  color,  or  previous 
condition  of  servitude. 

Neither  the  XIV  Amendment  nor  the  XV  Amend- 
ment  forbids  reasonable  educational  and  property  J™,ction 
or  other  restrictions  upon  suffrage.2  If  a  State  con- 
stitution should  provide  that  no  one  in  the  State 
shall  enjoy  the  privilege  of  the  ballot  unless  he 
is  able  to  read  and  translate  Hebrew  and  Sanskrit 
or  to  calculate  eclipses  of  the  heavenly  bodies, 
what  is  there  in  the  Federal  Constitution  or  amend- 
ments to  declare  such  legislation  invalid?  It  was 
with  the  full  knowledge  of  these  facts  that  Congress 


freedom  to  the  slave  was  no  boon.  They  were  in  all  those  States 
denied  the  right  of  suffrage.  The  laws  were  administered  by  the 
white  man  alone.  It  was  urged  that  a  race  of  men  distinctively 
marked  as  was  the  negro,  living  in  the  midst  of  another  and 
dominant  race,  could  never  be  fully  secured  in  their  person  and 
their  property  without  the  right  of  suffrage.  Hence  the  Fifteenth 
Amendment."  Slaughter-House  Cases,  (1872)  16  Wall.  (U.S.)  71. 
2  "  The  privilege  to  vote  in  any  State  is  not  given  by  the  Federal 
Constitution,  or  by  any  of  its  amendments.  It  is  not  a  privilege 
springing  from  citizenship  of  the  United  States.  It  may  not  be 
refused  on  account  of  race,  color  or  previous  condition  of  servi- 
tude, but  it  does  not  follow  from  mere  citizenship  of  the  United 
States.  In  other  words,  the  privilege  to  vote  in  a  State  is  within 
the  jurisdiction  of  the  State  itself,  to  be  exercised  as  the  State  may 
direct,  and  upon  such  terms  as  to  it  may  seem  proper,  provided,  of 
course,  no  discrimination  is  made  between  individuals  in  violation 
of  the  Federal  Constitution."  Pope  v.  Williams,  (1904)  193  U.  & 
632. 


228  CITIZENSHIP 


Chapter    demanded  of  the  States  then  lately  in  rebellion  that 
! —  before  resuming  their  relations  to  the  Union  they 


should  adopt  constitutions  with  clauses  in  them  pro- 
viding for  universal  manhood  suffrage,  and  should 
agree  that  these  features  be  irrepealable.  The 
States  did  accept  such  constitutions  and  did  give 
such  pledges.  It  remains  to  be  tested  how  far  they 
were  obligatory  upon  them.  Many  wise  and  learned 
lawyers  are  of  opinion  that  those  acts  of  Congress 
and  the  acceptances  of  the  States  based  upon  them 
were  unconstitutional  because,  under  our  federal 
plan  of  government,  it  is  contemplated  that  the 
States  shall  be  equal  in  authority  and  sovereignty.3 

Arguments.  jt   -g   argued  that  there  can  be   and   g^o^  be   nO 

distinction  between  the  States  in  their  power  to  regu- 
late their  own  affairs ;  that  no  State  can  voluntarily 
surrender  any  portion  of  the  power  reserved  to  it 
by  the  Constitution;  and  that  Congress  in  demand- 
ing from  the  States  these  "fundamental  conditions" 
of  reconstruction,  as  they  were  called,  created  an 
unconstitutional  discrimination  in  favor  of  the  do- 
mestic sovereignty  of  the  States  which  gave  the 
pledge,  making  it  different  from  that  of  the  States 

3 In  answer  to  an  objection  that  the  Georgia  constitution  "was 
adopted  under  the  dictation  and  coercion  of  Congress,  and  is  the 
act  of  Congress  rather  than  of  the  State,"  the  Supreme  Court  has 
said :  "  The  result  was  submitted  to  Congress  as  a  voluntary  and 
valid  offering,  and  was  so  received  and  so  recognized  in  the  sub- 
sequent action  of  that  body.  The  State  is  estopped  to  assail  it 
upon  such  an  assumption.  Upon  the  same  grounds  she  might  deny 
the  validity  of  her  ratification  of  the  constitutional  amendments. 
The  action  of  Congress  upon  the  subject  cannot  be  inquired  into. 
The  case  is  clearly  one  in  which  the  judicial  is  bound  to  follow  the 
action  of  the  political  department  of  the  government,  and  is  con- 
cluded by  it."  White  v.  Hart,  (1871)  13  Wall.  (U.  S.)  649. 


CITIZENSHIP  229 


which  gave  no  such  pledge,  thus  tending  to  destroy    Chapter 
that  equilibrium  of  State  sovereignty  and  independ-         ' 
ence  which  is  demanded  by  considerations  affecting 
the  common  welfare  and  is  necessary  to  the  per- 
manency of  the  Union  as  well  as  to  the  integrity  of 
the  States  composing  it.. 

It  is  contended  also  that  the  right  to  vote  is 
neither  a  natural  right,  nor  one  secured  by  the  Fed- 
eral Constitution  except  as  provided  in  the  XV 
Amendment;  that  it  is  purely  a  political  privilege 
conferred  upon  certain  members  of  the  body  politic 
for  the  benefit  and  welfare  of  all.  That  is  true. 
But  the  entire  frame  of  this  government  is  predi- 
cated upon  the  idea  that  this  is  a  government  of  the 
people,  by  the  people,  and  for  the  people ;  and  that 
the  people  have  a  right  to  choose  their  own  repre- 
sentatives and  to  make  and  administer  the  laws.  By 
the  word  " people"  is  always  meant  the  intelligent 
mass  of  the  community. 

The  theory  of  those  who  framed  and  induced  the  2J~e«aif 
adoption  of  the  XIV  and  XV  Amendments  was  that  suffrage* 
it  behooved  the  Federal  government,  not  arbi- 
trarily to  establish,  but  to  encourage,  universal  man- 
hood suffrage;  that  it  is  its  duty  to  prevent  the 
denial  of  suffrage  on  account  of  the  race,  color,  or 
previous  condition  of  the  citizen,  but  that  beyond 
this  it  could  not  control  State  action  on  the  subject ; 
that  it  is  the  unmistakably  correct  policy  of  repub- 
lican institutions  to  confer  the  ballot,  as  far  as  it  may 
be  safely  done,  upon  all  who  are  relied  upon  to  bear 
the  burdens  and  fight  the  battles  of  the  government. 
Civil  and  political  privileges  are  practically  one. 
The  rights  of  citizenship  and  of  property  are  of 


230  CITIZENSHIP 


chapter  little  value  and  of  small  consequence  in  the  absence 
' of  the  right  of  the  ballot  to  shield  and  protect  them. 
No  people  or  race  of  people  can  be  said  in  any 
proper  sense  to  enjoy  the  boon  of  freedom,  if  they 
are  denied  the  power  of  participating  in  the  making 
and  administering  of  the  laws.  The  right  of  suf- 
frage under  proper  conditions  is  a  stimulus  to  patri- 
otism, an  encouragement  to  civic  pride,  and  an  in- 
spiration to  improvement,  and  makes  the  citizen  a 
better  citizen  by  the  sense  of  being  part  of  his  gov- 
ernment and  by  imposing  on  him  responsibility  for 
the  wisdom  of  that  government  and  the  success  of 
its  administration.4 

Congress  doubtless  reserved  to  itself  the  power 
toereduceer  to  reduce  representation  under  the  conviction  that 
tionr.ese  '  while  it  might  not  have  power  to  prevent  States 
from  denying  or  abridging  suffrage  in  all  respects, 
it  should  have  power  to  reduce  their  representation 
in  Congress  if  for  any  cause  States  should  abridge 
their  own  electorates  so  as  to  make  the  voting 
class  cease  to  be  representative  of  popular  sover- 
eignty. It  has  been  said  that  this  is  the  only  agency 
at  the  command  of  Congress  by  which  to  make  good 
to  the  States  the  constitutional  guaranty  of  repub- 
lican government  in  spirit  as  well  as  in  form.  If 
for  instance,  the  millionaires  of  a  State  should  suc- 
ceed in  confining  suffrage  to  a  few  very  wealthy 
men,  it  would  be,  in  effect,  the  substitution  of  a 

*  For  the  above  order  of  presentation  and  much  of  the  language, 
the  author  is  indebted  to  the  Hon.  Edgar  D.  Cruinpacker,  of  In- 
diana, having  found  them  in  a  remarkably  able  speech  on  representa- 
tion and  suffrage  made  by  him  in  the  House  of  Representatives. 
Feb.  24,  1905. 


CITIZENSHIP  231 


moneyed  aristocracy  for  free  democracy  in  that  chapter 
State.  Under  the  XIV  Amendment  Congress  would  v' 
have  power  in  such  case  to  reduce  the  representation 
of  that  State  in  proportion  to  the  disfranchisement. 
The  denial  or  abridgment  in  that  instance  would 
have  nothing  to  do  with  race,  color,  or  previous  con- 
dition, yet  the  power  to  deal  with  it,  conferred  by 
the  XIV  Amendment,  is  apparent,  and  may  become 
of  vital  importance  as  the  only  available  way  of 
practically  enforcing  the  Federal  guarantee  of  a  re- 
publican form  of  government  for  the  States. 

The  argument  has  been  made  that  the  power 
granted  to  Congress  by  the  XIV  Amendment  to  re- 
duce  representation  for  disfranchisement  was  re- 
pealed  by  the  adoption  of  the  XV  Amendment. 
The  fallacy  of  this  contention  is  apparent  at  a 
glance.  The  XV  Amendment  prohibits  the  States 
from  denying  or  abridging  the  right  of  suffrage  for 
a  single  cause,  viz.,  race,  color,  or  previous  condition. 
The  XIV  Amendment  authorizes  the  reduction  of 
representation  if  the  right  of  suffrage  is  denied 
or  abridged  for  any  cause.  If  a  State  should 
abridge  the  right  to  an  arbitrary  or  unreason- 
able extent,  by  imposing  educational,  or  property, 
or  so-called  "intelligence"  qualifications,  or  by 
any  more  unreasonable  methods,  Congress  would 
have  the  power  to  examine  into  its  action  and  to 
judge  whether  such  practical  denial  or  abridgment 
of  suffrage  subjected  that  State  to  liability  to  have 
its  representation  reduced.  The  denial  or  abridg- 
ment on  account  of  race,  color,  or  previous  condi- 
tion would  be  a  nullity  because  it  is  made  uncon- 
stitutional by  the  XV  Amendment.  That  would 


232  CITIZENSHIP 


chapter  perhaps  prevent  Congress  from  reducing  represen- 
! —  tation  by  reason  of  such  a  law,  because,  being  in- 
operative, it  could  neither  deny  nor  abridge  the  right 
of  any  class.  Doubtless  it  was  a  solicitude  for  the 
protection  of  the  colored  citizen  that  inspired  the 
XIV  Amendment,  but  it  is  written  in  general  terms 
and  applies  to  all  classes  of  people,  and  notwith- 
standing the  XV  Amendment  it  stands  unrepealed. 
Minnesota  can  no  more  disfranchise  a  considerable 
portion  of  her  white  citizens  without  reference  to 
race  or  color,  and  escape  the  risk  of  having  her 
representation  reduced  therefor,  than  can  Missis- 
sippi disfranchise  her  black  citizens.  The  XIV 
Amendment  is  as  operative  to-day  as  it  was  the 
day  of  its  enactment.  An  educational  or  a  property 
qualification  imposed  by  any  State  of  this  Union 
to  the  extent  of  reducing  popular  representation,  and 
to  the  destruction  of  real  popular  representative  gov- 
ernment, is  as  plain  an  abridgment  of  the  right  of 
suffrage,  contrary  to  the  spirit  of  the  XIV  Amend- 
ment, as  an  abridgment  on  account  of  race,  color,  or 
condition.  One  of  these  restrictions  is  as  capable 
of  abuse  with  sinister  motives  as  the  other,  and  it  is 
within  the  plain  power  of  Congress  to  consider  and 
deal  with  both. 

So  much  for  the  letter  and  the  spirit  of  the  law  of 
federal  representation  in  Congress.  As  a  practical 
question  it  is  not  probable  that  Congress  will  ever 
enact  a  law  to  enforce  the  provisions  of  the  second 
section  of  the  XIV  Amendment  by  "appropriate 
legislation,"  or  that  it  will  ever  attempt  to  reduce 
the  representation  of  any  State  because  it  has  de- 
nied or  abridged  the  right  of  citizens  of  the  United 


CITIZENSHIP  233 


States  to  vote  at  any  of  the  elections  named  in  the    chapter 
amendment.    The  reasons  for  this  opinion  are  brief.          ' 


In  the  first  place,  the  overwhelming  majority  of  rep- 
resentatives in  Congress  are  white  men.  The  racial 
sympathy  existing  between  white  representatives  of 
States  where  the  blacks  are  few,  and  the  white  repre- 
sentatives of  the  States  which  disfranchise  them,  is 
stronger  than  any  political  theories.  The  statutes 
of  the  States  where  the  blacks  are  disfranchised  do 
not  openly  aver  the  real  purposes  of  the  acts.  They 
are  ostensibly  based  upon  sundry  other  disquali- 
fications, educational,  ownership  of  property,  regis- 
tration, residence,  etc.  If  the  legislation  is  as- 
sailed, those  who  frame  it  admit  its  real  purpose,  in 
private,  and  justify  it  by  specious  appeals  to  racial 
sympathies  and  exaggerated  pictures  of  the  dan- 
gers to  white  supremacy  in  their  section  unless  the 
course  adopted  be  followed.  So  industriously  is 
this  system  of  persuasion  and  appeal  to  racial  sym- 
pathy pursued,  that  even  political  antagonists  are 
soon  converted  to  this  idea  of  ' '  doing  evil  that  good 
may  come  of  it,"  and  join  in  the  effort  to  demon- 
strate that  the  discriminations  are  not  racial.  Once 
off  that  dangerous  ground,  new  elements  of  sym- 
pathy are  enlisted,  for,  throughout  the  North  and 
West,  educational  and  property  qualifications  are 
deemed  justifiable  limitations  upon  suffrage,  and  it 
would  be  impossible  to  secure,  by  the  votes  of  repre- 
sentatives from  those  sections,  any  Act  of  Congress 
reducing  the  representation  of  any  State  for  other 
than  race  discrimination. 

Congress  is  a  changing  body,  and  while  its  mem-  J0rgj£nsf 
bers  from  some  sections,  as  a  rule,  remain  but  a  short 


234  CITIZENSHIP 


time,  a  representative  from  the  South,  under  the 
system  prevailing,  once  elected  is  apt  to  stay  for 
a  long  time;  and  as  he  becomes  familiar  with  con- 
gressional methods  he  becomes  more  and  more  mas- 
ter of  the  Machiavelian  logic  of  his  peculiar  school, 
and  past  master  of  the  trading  politics  which  have 
always  characterized  the  dealings  with  each  other 
of  representatives  from  the  different  sections  in 
Congress.  He  knows  that  he  will  be  called  upon  to 
make  many  concessions  to  the  representatives  of 
other  sections  upon  commercial  legislation,  and  on 
questions  affecting  their  local  interests.  In  return 
he  has,  as  a  rule,  but  one  concession  to  demand  from 
them,  and  that  is  both  in  accord  with  their  own  prej- 
udices and  in  the  line  of  interests  against  congres- 
sional interference  with  their  own  States.  It  is  the 
privilege  of  being  left  alone  in  the  management  of 
his  State  affairs. 

The  power  granted  by  the  amendment  against 
knodnacti?n.  the  States  is  too  broad  to  be  comfortable  to  those 
called  on  to  enforce  it.  It  can  never  be  exercised 
save  by  the  vote  of  a  majority  of  representatives 
from  the  States  to  be  affected.  It  is  not  likely  that 
any  party  will  ever  possess  a  majority  sufficient  to 
enforce  these  provisions  against  any  State,  for  there 
will  ever  be  a  margin  of  timid  representatives  who 
will  fear  the  effect  on  their  own  fortunes  at  home 
if  they  should  recognize  a  principle  which  may  be 
dangerously  turned  against  their  own  constituents. 
The  bargain  is  easy;  the  result,  nonaction  by  Con- 
gress. And  so  far  as  any  practical  results  are  to 
be  expected  from  the  exercise  of  this  power  of  Con- 
gress to  reduce  representation,  it  is  as  unlikely  that 


CITIZENSHIP  235 


Congress  will  act  as  that  it  will  some  day  declare    Chapter 
this  government  to  be  an  absolute  monarchy.  ' 


5.  The  Right  of  States  to  Regulate  State  Procedure, 
Especially  Concerning  the  Summoning  and  Con- 
stitution of  Juries.6 

Many  cases  have  arisen  in  which  the  trial  of 
citizens  by  the  State  according  to  State  procedure  ceduerep^n 

general. 

has  been  questioned  as  an  infringement  of  a  right 
secured  by  the  XIV  Amendment.  The  only  cases  in 
which  these  claims  have  been  sustained  are  those  in 
which  there  was  a  discrimination  on  account  of  race, 
color,  or  previous  condition. 

The  right  of  a  citizen  of  the  United  States  to  £&*  £ 
trial  by  jury  in  a  federal  court  is  absolute  in  all  courts! 
trials  for  crimes  except  in  cases  of  impeachment 
(Constitution,  Article  III,  Section  1,  Clause  3,  and 
Amendment  VII),  and  in  suits  at  common  law  where 
the  value  in  controversy  does  not  exceed  twenty  dol- 
lars (Amendment  VII).  But  even  concerning  this 
right  it  has  been  held  that  in  contempt  proceedings 
the  party  in  contempt  is  not  entitled  to  a  trial  by 
jury  within  the  meaning  of  the  provisions  of  the 
Constitution.6 

While,  as  a  rule,  the  several  States  guarantee  to  ?jg^  g 

State 
8  "  The  limit  of  the  full  control  which  the  State  has  in  the  pro-    courts. 

ceedings  of  its  courts,  both  in  civil  and  criminal  cases,  is  subject 
only  to  the  qualification  that  such  procedure  must  not  work  a  denial 
of  fundamental  rights  or  conflict  with  specific  and  applicable  provi- 
sions of  the  Federal  Constitution."  West  v.  Louisiana,  (1904)  194 
U.  S.  263. 

The  decisions  of  the  United  States  Supreme  Court  on  the  righta 
of  the  State  to  regulate  procedure  are  listed  at  the  close  of  this 
volume  in  Appendix  B. 

«Eilenbecker  v.  District  Ct.,   (1890)    134  U.  S.  31. 


236  CITIZENSHIP 


their  citizens  trials  by  jury,  it  has  been  held  that 
trial  by  jury  in  the  State  courts  for  offenses  against 
the  State  is  not  a  privilege  or  immunity  of  national 
citizenship  which  the  XIV  Amendment  forbids  the 
States  to  abridge.7 

In  *^e  case  °^  Louisville,  etc.,  R.  Co.  v.  Ken- 
procedSu?ee  tucky*  the  Supreme  Court  said:  "For  the  Federal 
courts  to  interfere  with  the  legislative  department 
of  the  State  government,  when  acting  within  the 
scope  of  its  admitted  powers,  is  always  the  exercise 
of  a  delicate  power,  one  that  should  not  be  resorted 
to  unless  the  reason  for  doing  so  is  clear  and  unmis- 
takable." 

The  same  language  is  equally  applicable  to  an 
interference  with  the  judiciary  department  of  a 
State  government. 

In  the  case  of  McPherson  v.  Blacker?  the  Su- 
preme Court  again  said  that  the  XIV  Amendment 
did  not  "radically  change  the  whole  theory  of  the  re- 
lations of  the  State  and  Federal  governments  to  each 
other,  and  of  both  governments  to  the  people. ' ' 

7  Edwards  v.  Elliott,    (1874)   21  Wall.    (U.  S.)    557;   Walker  v. 
Sauvinet,  (1875)  92  U.  S.  90;  Pearson  v.  Yewdall,  (1877)   95  U.  S. 
294. 

"The  States,  so  far  as  this  amendment  is  concerned,  are  left  to 
regulate  trials  in  their  own  courts  in  their  own  way.  A  trial  by 
jury  in  suits  at  common  law  pending  in  the  State  courts  is  not, 
therefore,  a  privilege  or  immunity  of  national  citizenship,  which 
the  States  are  forbidden  by  the  Fourteenth  Amendment  to  abridge. 
A  State  cannot  deprive  a  person  of  his  property  without  due  process 
of  law;  but  this  does  not  necessarily  imply  that  all  trials  in  the 
State  courts  affecting  the  property  of  persons  must  be  by  jury. 
This  requirement  of  the  Constitution  is  met  if  the  trial  is  had 
according  to  the  settled  course  of  judicial  proceedings."  Walker  v. 
Sauvinet,  (1875)  92  U.  S.  92. 

8  (1902)    183  U.  S.  511. 
»  (1892)   146  U.  S.  39. 


CITIZENSHIP  237 


In  the  case  of  Williams  v.  Mississippi,1  the  Su-    Chapter 
preme  Court  said:    "The  conduct  of  a  criminal  trial 


in  a  State  court  cannot  be  reviewed  by  the  Supreme 
Court  of  the  United  States,  unless  the  trial  is  had  trials' 
under  some  statute  repugnant  to  the  Constitution 
of  the  United  States,  or  was  so  conducted  as  to  de- 
prive the  accused  of  some  right  or  immunity  secured 
to  him  by  that  instrument.  '  ' 

In  the  case  of  In  re  Converse,2  it  is  said:    "The 


XIV  Amendment  .  .  .  was  not  designed  to  in-  testates. 
terfere  with  the  power  of  the  State  to  protect  the 
lives,  liberty,  and  property  of  its  citizens;  nor  with 
the  exercise  of  that  power  in  the  adjudications  of  the 
courts  of  a  State  in  administering  the  process  pro- 
vided by  the  law  of  the  State." 

And  while  the  court  has  repeatedly  declared  that  Si  to 


represen- 


in  determining  the  qualifications  of  State  jurors  the  tation  on 
States  must  take  care  that  no  discrimination  in  re- 
spect to  such  service  be  made  against  any  class  of 
citizens  solely  because  of  their  race,  it  also  held  in 
the  case  of  In  re  Shibuya  Jugiro 3  that  no  person 
charged  with  a  crime  involving  life  and  liberty  is 
entitled,  by  virtue  of  the  Constitution  of  the  United 
States,  to  have  his  race  represented  upon  the  grand 
jury  that  may  indict  him,  or  upon  the  petit  jury  that 
may  try  him,  and  that  it  rests  with  each  Slate  to 
prescribe  such  qualifications  as  it  deems  proper  for 
jurymen,  subject  only  to  the  limitation  against  race 
discrimination  above  referred  to. 

1  (1898)   170  U.  S.  213. 

2  (1891)    137  U.  S.  631. 

3  (1891)    140  U.  S.  297. 


238  CITIZENSHIP 


Chapter         in  the  case  of  Ex  p.  Reg  gel  4  it  was  declared  that 
'       the  State  may  regulate  State  procedure. 


case  °^  Gibson  v.  Mississippi  5  it  was  de- 
cided that  the  States  may  impose  for  jury  service 
conditions  confining  jurors  to  males,  to  freeholders, 
to  citizens,  to  persons  within  certain  ages,  or  to  per- 
sons having  educational  qualifications,  and  that  the 
claim  to  a  mixed  jury  is  not  a  matter  of  right  ;  that 
it  is  a  denial,  because  of  color,  of  rights  accorded 
to  whites,  that  constitutes  the  forbidden  discrimina- 
tion. 

?fu?urors.  In  the  case  of  Maxwell  v.  Dow,Q  the  complainant 
averred  that  he  was  deprived  of  his  privileges  and 
immunities  by  a  trial  in  the  State  court  by  a  jury 
of  eight  persons.  The  decision  was  adverse  to  his 
claim  on  the  ground  that  the  right  of  trial  by  a  jury 
of  twelve  was  a  guarantee  of  the  Federal  Constitu- 
tion concerning  federal  trials,  and  the  State  had  a 
right  to  prescribe  a  trial  by  eight  jurors  if  that  was 
the  ordinary  course  of  legal  procedure. 
mentshof  Some  amusing  claims  have  been  made  under  the 

SrimhiSs  supposed  protection  of  this  guarantee,  as  for  exam- 
catrfST  pie,  in  the  case  of  McDonald  v.  Massachusetts,7 
where  the  power  of  the  State  to  impose  additional 
punishment  upon  habitual  criminals  was  questioned  ; 
but  the  contention  was  rejected  and  the  States  were 

*  A  State  "  has  the  right  to  establish  the  forms  of  pleadings  and 
process  to  be  observed  in  her  own  courts,  in  both  civil  and  criminal 
cases,  subject  only  to  those  provisions  of  the  Constitution  of  the 
United  States,  involving  the  protection  of  life,  liberty,  and  property 
in  all  the  States  of  the  Union."  Ex  p.  Reggel,  (1885)  114  U.  S.  651. 

5  (1896)    162  U.  S.  565. 

e  (1900)    176  U.  S.  581. 

7  (1901)    180  U.  S.  311. 


CITIZENSHIP  239 


held  to  have  the  power  to  impose  such  additional 
punishment.  In  the  case  of  In  re  Kemmler,8  one 
who  had  been  condemned  to  death  in  a  State  pro- 
ceeding in  New  York,  and  sentenced  to  electrocution, 
questioned  the  power  of  the  State  to  impose  such 
a  sentence.  The  privilege  which  he  appears  to  have 
asserted  was  the  privilege  of  being  hanged  instead 
of  being  electrocuted ;  but  the  decision  was  adverse, 
for  the  State  was  declared  to  possess  complete  con- 
trol of  the  subject,  and  his  right,  if  such  a  fanciful 
claim  may  be  so  called,  was  held  not  to  be  within 
Federal  protection. 

It  has  been  repeatedly  held  that  where  the  pro- 
ceedings  in  a  State  court  are  according  to  the  courts.1 
regular  forms  of  State  procedure  and  not  based  on 
laws  which  create  the  forbidden  discrimination,  the 
federal  court  has  no  jurisdiction  to  inquire  or  de- 
cide whether  erroneous  rulings  were  made  in  the 
trial  or  to  review  the  trial  as  upon  an  appeal  on  the 
merits,  and  that  the  function  of  the  federal  tribunal 
is  confined  to  the  inquiry  whether  the  law  involved, 
in  terms,  or  in  its  administration,  makes  a  discrim- 
ination against  the  accused  on  account  of  race,  color, 
or  condition. 

As  was  said  in  the  case  of  Kennard  v.  Louis- 
iana,9  the  real  inquiry  concerning  the  legality  of  the 
procedure  in  a  State  court  is  whether  the  trial  was  pro 
had  in  the  State  court  "in  due  course  of  legal  pro- 
ceedings, according  to  those  rules  and  forms  which 
have  been  established  for  the  protection  of  private 
rights  "  and  it  was  added,  "irregularities  and  mere 

8  (1890)    136  U.  S.  436. 

9  (1875)   92  U.  S.  480. 


240 


CITIZENSHIP 


Power    of 
State   to 
deal    with 
crime. 


Right  to 
particular 
form  of 
action. 


Marriage 
and    di- 


Excluding 
negroes 
from 
juries 
—  proof. 


errors  in  the  proceedings  can  only  be  corrected  in 
the  State  courts.''  And  in  the  later  case  of 
Presser  v.  Illinois *  it  was  said  that  the  State  may 
pass  any  laws  in  regulating  the  privileges  and  im- 
munities of  its  citizens  if  they  do  not  abridge  their 
privileges  and  immunities  as  citizens  of  the  [United 
States.  Varying  the  number  of  challenges  of 
veniremen  in  proceedings  in  the  State  court  in  dif- 
ferent parts  of  a  State  is  not  a  denial  of  the  equal 
protection  of  the  law.2 

The  power  of  the  State  to  deal  with  crime  within 
its  borders  is  not  limited  by  the  XIV  Amendment 
save  that  no  State  can  deprive  parts  or  classes  of  its 
people  of  equal  and  impartial  justice.3 

In  the  case  of  Iowa  Cent.  R.  Co.  v.  Iowa4  it  is 
said  that  it  is  not  "a  right,  privilege,  or  immunity 
of  a  citizen  of  the  United  States  to  have  a  contro- 
versy in  the  State  court  prosecuted  or  determined  by 
one  form  of  action  instead  of  by  another. ' ' 

The  case  of  Andrews  v.  Andrews5  contains  an 
important  and  instructive  discussion  of  the  power  of 
the  States  to  prescribe  and  control  State  procedure 
on  questions  of  marriage  and  divorce. 

Actual  discriminations  by  officers  charged  with 
the  administration  of  State  statutes  unobjectionable 
in  themselves,  against  the  rights  of  a  negro  on  trial, 
by  purposely  excluding  negroes  from  the  jury  will 
not  be  presumed  but  must  be  proved,  and  in  order 


1  (1886)   116  U.  S.  252. 

2  Hayes  v.  Missouri,   (1887)    120  U.  S.  68. 
sLeeper  v.  Texas,   (1891)    139  U.  S.  462. 
*  (1896)    160  U.  S.  393. 

5  (1903)    188  U.  S.  14. 


CITIZENSHIP  241 

to  sustain  a  motion  to  quash  an  indictment  because    chapter 
negroes  were  excluded  from  the  grand  jury  a  de- 
f endant  must  prove  the  fact  or  offer  to  prove  it.6 

Supplementing  the  above  outlines  of  the  deci- 
sions upon  the  question  what  State  procedure  is 
within  the  power  of  the  States  to  regulate,  the  reader 
will  find  a  full  collection  of  the  authorities  in  Ap- 
pendix B  at  the  end  of  this  book. 

An  interesting  discussion  of  the  reserved  powers 
of  the  States  will  be  found  in  the  dissenting  opinion 
of  Mr.  Justice  White,  in  the  famous  "merger  de- 
cision. ' ' 7 

6.    Of  tine  Power  of  the  State  to  Control  and  Regu^ 
late  the  Business  of  Corporations  in  the  State.8 

Numerous  decisions  are  to  the  effect  that  cor- 
porations    are    within    the   meaning    of    the    XIV  ?ont°he°us 
Amendment.9    But  the  fact  that  they  are  within  the 

6Brownfield  v.  South  Carolina,  (1903)  189  U.  S.  426;  Smith  V. 
Mississippi,  (1896)  162  U.  S.  592. 

i  Northern  Securities  Co.  v.  Minnesota,  194  U.  S.  48. 

s  The  decisions  of  the  United  States  Supreme  Court  on  the 
power  of  the  States  to  regulate  and  control  the  business  of  corpora- 
tions are  listed  in  the  order  of  their  rendition  at  the  close  of  this 
volume.  See  Appendix  C. 

»  Santa  Clara  County  v.  Southern  Pac.  R.  Co.,  (1886)  118  U.  S. 
394;  Pembina  Consol.  Silver  Min.,  etc.,  Co.  v.  Pennsylvania,  (1888) 
125  U.  S.  189;  Missouri  Pac.  R.  Co.  v.  Mackey,  (1888)  127  U.  S. 
209;  Minneapolis,  etc.,  R.  Co.  v.  Beckwith,  (1889)  129  U.  S.  28; 
Home  Ins.  Co.  v.  New  York,  (1890)  134  U.  S.  606;  Charlotte,  etc., 
R.  Co.  v.  Gibbes,  (1892)  142  U.  S.  391;  Gulf,  etc.,  R.  Co.  v.  Ellis, 
(1897)  165  U.  S.  154;  Covington,  etc.,  Turnpike  Road  Co.  v.  Sand- 
ford,  (1896)  164  U.  S.  592;  Lake  Shore,  etc.,  R.  Co.  v.  Smith, 
(1899)  173  U.  S.  690;  Covington,  etc.,  Turnpike  Road  Co.  v.  Sand- 
ford,  (1896)  164  U.  S.  578;  Smyth  v.  Ames,  (1898)  169  U.  S.  466. 

"  It  is  now  settled  that  corporations  are  persons  within  the 
meaning  of  the  constitutional  Drovisions  forbidding  the  deprivation 
16 


242  CITIZENSHIP 


chapter  meaning  of  the  amendment  does  not  give  foreign 
V'  insurance  companies  any  more  rights  as  against 
the  State  than  they  had  before  its  enactment.  The 
State  may  still  regulate  the  terms  upon  which  they 
may  be  admitted  to  do  business  in  the  State.1  It 
may  enact  penalties  for  their  negligence.2  The 
State  may  regulate  grade  crossings  of  railroads.3 
It  may  also  pass  laws  establishing  a  rule  of  damages 
in  the  case  of  injuries  to  employes  under  what  is 
known  as  the  "fellow-servant  law."4  It  has  also 
been  held  that  the  States  may  classify  the  subjects 

of  property  without  due  process  of  law,  as  well  as  a  denial  of  the 
equal  protection  of  the  laws."  Covington,  etc.,  Turnpike  Road  Co. 
V.  Sandford,  (1896)  164  U.  S.  592. 

"  The  rights  and  securities  guaranteed  to  persons  by  that  instru- 
ment [the  Constitution]  cannot  be  disregarded  in  respect  to  these 
artificial  entities  called  corporations  any  more  than  they  can  be  in 
respect  to  the  individuals  who  are  the  equitable  owners  of  the  prop- 
erty belonging  to  such  corporations.  A  State  has  no  more  power 
to  deny  to  corporations  the  equal  protection  of  the  law  than  it  has 
to  individual  citizens."  Gulf,  etc.,  R.  Co.  v.  Ellis,  (1897)  165 
U.  S.  154. 

1  Philadelphia  F.  Assoc.  v.  New  York,    (1886)    119  U.  S.  110; 
Waters-Pierce  Oil  Co.  v.  Texas,    (1900)    177  U.  S.  28;  Orient  Ins. 
Co.  v.  Daggs,   (1899)   172  U.  S.  557. 

2  Missouri  Pac.  R.  Co.  v.  Humes,  (1885)   115  U.  S.  513. 

"  The  inhibition  of  the  amendment  that  no  State  shall  deprive 
any  person  within  its  jurisdiction  of  the  equal  protection  of  the 
laws  was  designed  to  prevent  any  person  or  class  of  persons  from 
being  singled  out  as  a  special  subject  for  discriminating  and  hos- 
tile legislation.  Under  the  designation  of  person  there  is  no  doubt 
that  a  private  corporation  is  included;  .  .  .  [but]  the  State  is 
not  prohibited  from  discriminating  in  the  privileges  it  may  grant 
to  foreign  corporations  as  a  condition  of  their  doing  business  or 
hiring  offices  within  its  limits,  provided  always  such  discrimination 
does  not  interfere  with  any  transaction  by  such  corporations  of 
interstate  or  foreign  commerce."  Pembina  Consol.  Silver  Min.,  etc., 
Co.  v.  Pennsylvania,  (1888)  125  U.  S.  188. 

3  New  York,  etc.,  R.  Co.  v.  Bristol,   (1894)   151  U.  S.  556. 
*Tullis  v.  Lake  Erie,  etc.,  R.  Co.,  (1899)   175  U.  S.  348. 


CITIZENSHIP 


243 


of  legislation  and  make  different  regulations  as  to  chapter 
the  property  of  different  individuals  differently  sit- 
uated. The  provisions  of  the  Federal  Constitution 
are  satisfied  if  all  persons  similarly  situated  are 
treated  alike  in  the  privileges  conferred  and  the 
liabilities  imposed.5 


7.    The  Right  to  Control  the  Conduct  of  Individuals 
and  Bodies  of  Citizens  in  Public  Places. 

The  XIV  Amendment  did  not  destroy  the  power  p°wefs  as 
of  the  States  to  enact  police  regulations  concerning  p°acpes. ' 
the  subjects  within  their  control.6    In  Presser  v.  Illi- 

B  Field  v.  Barber  Asphalt  Paving  Co.,  (1904)  194  U.  S.  621, 
where  the  court  said :  "  It  is  not  the  purpose  of  the  Fourteenth 
Amendment,  as  has  been  frequently  held,  to  prevent  the  States  from 
classifying  the  subjects  of  legislation  and  making  different  regula- 
tions as  to  the  property  of  different  individuals  differently  situated. 
The  provision  of  the  Federal  Constitution  is  satisfied  if  all  persons 
similarly  situated  are  treated  alike  in  privileges  conferred  or  liabili- 
ties imposed." 

"  Legislation  does  not  infringe  upon  the  clause  of  the  Fourteenth 
Amendment  requiring  legal  protection  of  the  laws,  because  it  is 
special  in  its  character ;  if  in  conflict  at  all  with  that  clause,  it  must 
be  on  other  grounds.  And  when  legislation  applies  to  particular 
bodies  or  associations,  imposing  upon  them  additional  liabilities,  it 
is  not  open  to  the  objection  that  it  denies  to  them  the  equal  pro- 
tection of  the  laws,  if  all  persons  brought  under  its  influence  are 
treated  alike  under  the  same  conditions."  Missouri  Pac.  R.  Co.  V. 
Mackey,  (1888)  127  U.  S.  209. 

6 "  Neither  the  amendment  —  broad  and  comprehensive  as  it  is 
—  nor  any  other  amendment,  was  designed  to  interfere  with  the 
power  of  the  State,  sometimes  termed  its  police  power,  to  prescribe 
regulations  to  promote  the  health,  peace,  morals,  education,  and 
good  order  of  the  people,  and  to  legislate  so  as  to  increase  the  in- 
dustries of  the  State,  develop  its  resources,  and  add  to  its  wealth 
and  prosperity."  Barbier  v.  Connolly,  (1885)  113  U.  S.  31. 

"  The  police  power  cannot  be  put  forward  as  an  excuse  for 
oppressive  and  unjust  legislation,  [but]  it  may  be  lawfully  resorted 
to  for  the  purpose  of  preserving  the  public  health,  safety,  or  morals, 
or  the  abatement  of  public  nuisances,  and  a  large  discretion  '  is 


244 


CITIZENSHIP 


Chapter    no{si  it  was  declared  that  the  State  may  pass  laws 

! —  regulating   the   privileges    and   immunities    of   its 

own  citizens  if  they  do  not  abridge  their  privileges 
and  immunities  as  citizens  of  the  United  States. 
And  in  Davis  v.  Massachusetts*  a  municipal  ordi- 
nance making  it  necessary  to  procure  a  permit  from 
the  mayor  to  entitle  a  person  to  make  a  public  ad- 
dress upon  any  public  grounds  of  the  city  was  held 
to  be  valid,  as  a  mere  exercise  of  the  administrative 
authority  within  the  police  power  of  the  State. 

Numerous  cases  cited  in  note  6,  p.  214,  supra, 
sufficiently  sustain  this  power,  especially  the  case 
of  Wilson  v.  Eureka  City.9 

8.    To  Require  Citizens  to  Observe  Morality  and 

Decency. 


Conten- 
tions 
against 
enforce- 
ment  of 
moral 
relations. 


The  claims  to  immunity  asserted  against  this 
power  are  in  many  instances  ludicrous.  For  exam- 
ple, a  negro  citizen  of  Alabama  who  was  prosecuted 
for  living  openly  in  improper  relations  with  a  white 
woman  pleaded  the  immunity  of  the  XIV  Amend- 
ment. The  reply  was  that  nothing  in  the  amend- 
ment warranted  any  such  violation  of  decency.1  So 
also  the  right  to  live  in  a  state  of  polygamy  was 
asserted  as  a  religious  tenet  of  the  accused.  The 
right  was  denied  on  the  ground  that  crime  could  not 

necessarily  vested  in  the  legislature  to  determine  not  only  what 
the  interests  of  the  public  require,  but  what  measures  are  necessary 
for  the  protection  of  such  interests.'"  Holden  v.  Hardy,  (1898) 
169  U.  S.  392. 

7  (1886)   116  U.  S.  252. 

*  (1897)    167  U.  S.  44. 

»  (1899)    173  U.  S.  32. 

i  Pace  v.  Alabama,  (1882)  106  U.  S.  583. 


CITIZENSHIP  245 


commerce. 


be  covered  up  by  pleading  that  it  was  committed  as    Chapter 
a  part  of  the  religious  faith  of  the  defendant.2    And         * 
the  law  of  Illinois  forbidding  gambling  in  options 
was  likewise  held  to  be  within  the  power  of  the 
State.3 

9.    Of  the  Power  of  the  State  to  Separate  the  Races 
in  Public  Places. 

This  question  has  given  rise  to  a  series  of  most 
interesting  decisions.  The  first  case  in  the  Supreme  intestate 
Court  was  that  of  the  Louisville,  etc.,  R.  Co.  v.  Mis- 
sissippi.4 The  State  law  of  Mississippi  provided 
for  the  separation  of  blacks  and  whites  in  public 
conveyances.  The  Supreme  Court  of  Mississippi 
decided  that  the  law  did  not  apply  to  interstate  com- 
merce, and  the  Supreme  Court  of  the  United  States, 
adopting  that  construction  of  the  law,  held  that  it 
was  competent  to  the  State  in  the  exercise  of  its 
police  powers  to  separate  the  races,  and  declared 
that  it  was  no  discrimination  on  account  of  race,  or 


2  Davis  V.  Beason,  (1890)    133  U.  S.  333. 

s  Booth  v.  Illinois,  ( 1902 )  184  U.  S.  425.  See  also  McDonald  V. 
Massachusetts,  (1901)  180  U.  S.  311;  Otis  u.  Parker,  (1903)  187 
U.  S.  606;  U.  S.  v.  Williams,  (1904)  194  U.  S.  279;  Public  Clearing 
House  v.  Coyne,  (1904)  194  U.  S.  497. 

"  If,  looking  at  all  the  circumstances  which  attend  or  may 
ordinarily  attend  the  pursuit  of  a  particular  calling,  a  State 
thinks  that  certain  admitted  evils  cannot  be  successfully  reached 
unless  that  calling  be  actually  prohibited,  the  courts  cannot  inter- 
fere unless,  looking  through  mere  forms  and  at  the  substance  of 
the  matter,  they  can  say  that  the  statute,  enacted  professedly  to 
protect  the  public  morals,  has  no  real  or  substantial  relation  to- 
that  object,  but  is  a  clear,  unmistakable  infringement  of  rights 
secured  by  the  fundamental  law."  Booth  i?.  Illinois,  (1902)  184; 
U.  S.  425. 

*  (1890)    133  U.  S.  587. 


246  CITIZENSHIP 


Chapter    badge  of  servitude  put  upon  either  race,  to  require 

-  that  they  should  be  separated. 

In  the  later  case  of  Plessy  v.  Ferguson  5  this  idea 
was  expressed  as  follows:  "The  object  of  the 
amendment  was  undoubtedly  to  enforce  the  absolute 
equality  of  the  two  races  before  the  law,  but  in  the 
nature  of  things  it  could  not  have  been  intended  to 
abolish  distinctions  based  upon  color." 

Schools.  rpj^  question  likewise  came  up  in  regard  to  the 

separation  of  the  races  in  public  schools,  in  the 
case  of  Gumming  v.  Board  of  Education?  where  it 
was  said :  * t  Interference  on  the  part  of  Federal  au- 
thority with  the  management  of  such  schools  cannot 
be  justified  except  in  the  case  of  a  clear  and  unmis- 
takable disregard  of  rights  secured.  .  .  .  The 
education  of  the  people  in  schools  maintained  by 
State  taxation  is  a  matter  belonging  to  the  re- 
spective States." 

10.    Of  the  Power  of  the  State  to  Regulate  State 
Taxation.7 

Grounds  Many  questions  have  arisen  upon  this  power  of 

statutes.  State  taxation,  and  in  nearly  every  case  the  particu- 
lar State  law  involved  was  assailed  on  the  triple 
ground  that  it  abridged  privileges  and  immunities, 
that  it  deprived  of  due  process  of  law,  and  that  it 
deprived  of  the  equal  protection  of  the  laws.  A 
study  of  the  cases  will  be  necessary  to  an  under- 

e  (1896)  163  U.  S.  544;  Chesapeake,  etc.,  R.  Co.,  v.  Kentucky, 
(1900)  179  U.  S.  388. 

e  (1899)  175  U.  S.  528. 

7  The  decisions  of  the  United  States  Supreme  Court  on  the  power 
of  the  States  to  regulate  State  taxation  are  listed  in  the  order  of 
their  rendition  at  the  close  of  this  volume.  See  Appendix  D. 


CITIZENSHIP  247 


standing  of  all  the  points  decided.    The  following    chapter 
are  some  of  the  general  principles  settled :  — — ' — 


A  State  law  of  taxation  which  discriminates  be- 
tween  the  complainant  and  others  of  the  same  class  3ass.n  ' 
is  invalid.  A  State  law  of  taxation  which  taxes  an 
individual  at  a  rate  different  from  those  in  his 
class,  in  effect  denies  him  the  equal  protection  of 
the  laws.  It  was  not  the  purpose  or  function  of  the 
amendment  to  change  the  system  or  policy  of  the 
State  in  regard  to  the  devolution  of  estates  or  to 
limit  the  extent  of  the  taxing  power  of  the  State  in 
cases  of  the  devolution  of  estates.  States  have  a 
right  to  classify  the  subjects  of  taxation  when  the 
property  of  different  individuals  is  differently  sit- 
uated, and  if  all  persons  similarly  situated  are 
treated  alike  in  the  liabilities  imposed  the  State  does 
not  violate  the  amendment. 

The  State  may  pass  special  legislation  of  a  spe- 
cial  character  applicable  to  and  imposing  taxes  on 
certain  districts  only,  for  particular  improvements 
there,  such  as  draining  marshes  and  irrigating  arid 
plains,  supplying  water  for  preventing  fires,  light- 
ing particular  districts,  cleaning  particular  streets, 
opening  parks,  and  for  many  other  objects ;  and  reg- 
ulations for  these  purposes  may  press  with  more  or 
less  weight  upon  one  than  upon  another  citizen ;  but 
in  their  design  they  are  not  to  impose  unequal  and 
unnecessary  restrictions  upon  any  one,  and  though 
necessarily  special  in  their  character,  they  furnish 
no  ground  of  complaint  if  they  operate  alike  upon 
all  persons  and  property  under  the  same  circum- 
stances and  conditions.8 

s  "  The  amendment  does  not  prevent  the  classification  of  property 


248 


CITIZENSHIP 


Chapter 
V. 


Class    leg- 
islation — 
local 
assess- 
ments. 


Class  legislation,  discriminating  against  some 
and  favoring  others,  is  prohibited  by  the  amend- 
ment, but  legislation  which,  in  carrying  out  a  public 
purpose,  is  limited  in  its  application,  if  within  the 
sphere  of  its  operation  it  affects  alike  all  persons 
similarly  situated,  is  not  within  the  amendment.9 
So,  too,  in  the  case  of  a  nonresident  whose  lands 
were  subjected  to  a  local  assessment  for  the  com- 
mon benefit  of  the  locality,  the  same  assessment  be- 

for  taxation,  subjecting  one  kind  of  property  to  one  rate  of  taxation, 
and  another  kind  of  property  to  a  different  rate;  distinguishing  be- 
tween franchises,  licenses  and  privileges,  and  visible  and  tangible 
property,  and  between  real  and  personal  property.  Nor  does  -the 
amendment  prohibit  special  legislation.  Indeed,  the  greater  part  of 
all  legislation  is  special,  either  in  the  extent  to  which  it  operates,  or 
the  objects  sought  to  be  obtained  by  it.  And  when  such  legislation 
applies  to  artificial  bodies,  it  is  not  open  to  objection  if  all  such 
bodies  are  treated  alike  under  similar  circumstances  and  conditions, 
in  respect  to  the  privileges  conferred  upon  them  and  the  liabilities 
to  which  they  are  subjected."  Home  Ins.  Co.  v.  New  York,  (1890) 
134  U.  S.  606. 

» "  Clear  and  hostile  discriminations  against  particular  persons 
and  classes,  especially  such  as  are  of  an  unusual  character,  unknown 
to  the  practice  of  our  governments,  might  be  obnoxious  to  the  con- 
stitutional prohibition.  It  would,  however,  be  impracticable  and 
unwise  to  attempt  to  lay  down  any  general  rule  or  definition  on  the 
subject,  that  would  include  all  cases.  They  must  be  decided  as  they 
arise.  We  think  that  we  are  safe  in  saying  that  the  Fourteenth 
Amendment  was  not  intended  to  compel  the  State  to  adopt  an  iron 
rule  of  equal  taxation.  If  that  were  its  proper  construction,  it 
would  not  only  supersede  all  those  constitutional  provisions  and 
laws  of  some  of  the  States,  whose  object  is  to  secure  equality  of 
taxation,  and  which  are  usually  accompanied  with  qualifications 
deemed  material;  but  it  would  render  nugatory  those  discrimina- 
tions which  the  best  interests  of  society  require,  which  are  neces- 
sary for  the  encouragement  of  needed  and  useful  industries,  and 
the  discouragement  of  intemperance  and  vice,  and  which  every 
State,  in  one  form  or  another,  deems  it  expedient  to  adopt."  Bell's 
Gap  R.  Co.  v.  Pennsylvania,  (1890)  134  U.  S.  237. 

"  Perfect  equality  and  perfect  uniformity  of  taxation  as  regards 
individuals  or  corporations,  or  the  different  classes  of  property 


CITIZENSHIP  249 


ing  levied  against  resident  property-holders  in  the    Chapter 

same  vicinity,  it  was  held  that  the  law  levying  the  — — ! 

assessment  was  not  a  discriminating  tax.  And  a 
paving  ordinance  making  an  assessment  on  people  in 
a  particular  neighborhood  for  the  benefit  of  their 
common  property  was  held  not  to  violate  any  priv- 
ilege or  immunity  of  the  citizen  because  it  applied 
to  all  similarly  situated. 

11.    Of  the  Right  of  the  State  to  Control  State 
Elections. 

This  subject  was  fully  discussed  in  the  celebrated  eSctrffJr 
case  of  Taylor  v.  Beckham,1  and  has  already  been  crfminadis" 
referred  to,  and  it  is  sufficient  to  say  concerning 
it  that  federal  courts  have  repudiated  any  jurisdic- 
tion to  consider  the  conduct  of  the  results  of  State 
elections  unless  in  some  controversy  wherein  the 
law  under  which  they  were  held,  or  the  manner  in 
which  they  were  conducted,  discriminated  against 
the  complainant  by  reason  of  his  race. 

Due  Process  of  Law. 

Amendment  V  to  the  Constitution  provides  that  ^f°P70.of 
the  Federal  government  shall  not  deprive  any  citi-  difficulty 
zen  of  life,  liberty,  or  property  without  due  process  ?ng  the 

subject  to  taxation,  is  a  dream  unrealized.  It  may  be  admitted 
that  the  system  which  most  nearly  attains  this  is  the  best.  But  the 
most  complete  system  which  can  be  devised  must,  when  we  consider 
the  immense  variety  of  subjects  which  it  necessarily  embraces,  be 
imperfect."  State  Railroad  Tax  Cases,  (1875)  92  U.  S.  612. 

i  (1900)  178  U.  S.  548,  where  the  court  said  in  part:  "It  is 
obviously  essential  to  the  independence  of  the  States,  and  to  their 
peace  and  tranquillity,  that  their  power  to  prescribe  the  qualifica- 
tions of  their  own  officers,  the  tenure  of  their  offices,  the  manner 
of  their  election,  and  the  grounds  on  which,  the  tribunals  before 


250  CITIZENSHIP 


Chapter  Of  jaw.  Although  that  proviso  remained  in  the 
Constitution  until  the  adoption  of  the  XIV  Amend- 
ment, the  only  case  in  which  the  meaning  of  these 
words  was  construed  in  the  eighty  years  that  it 
stood  alone  is  the  case  of  Murray  v.  Hoboken  Land, 
etc.,  Co.2  The  XIV  Amendment  merely  made  that 
same  rule  obligatory  upon  the  States.  Within  the 
forty  years  since  the  adoption  of  the  amendment, 
there  has  never  been  a  time  when  the  Supreme  Court 
docket  was  not  crowded  with  cases  in  which  it  was 
claimed  that  State  legislation  had  deprived  the  com- 
plainant of  life,  liberty,  or  property  without  due 
process  of  law.  A  glance  at  the  formidable  array 
of  cases  in  which  the  Supreme  Court  has  passed 
upon  this  question  gives  but  a  faint  idea  of  the 
amount  of  litigation  to  which  it  has  given  rise.  In 
one  of  the  earliest  cases,  Davidson  v.  New  Orleans? 
Mr.  Justice  Miller,  perhaps  the  ablest  judge  on  the 
Supreme  Court  bench  since  the  adoption  of  the  XIV 
Amendment,  rendered  an  opinion  in  which  he  gave 

which,  and  the  mode  in  which,  such  elections  may  be  contested, 
should  be  exclusive,  and  free  from  external  interference,  except  so 
far  as  plainly  provided  by  the  Constitution  of  the  United  States." 

2  (1855)    18  How.    (U.  S.)    272. 

3  (1877)    96  U.  S.  97. 

While  the  provision  of  the  Fourteenth  Amendment  which  ordains 
that  no  State  shall  "  deprive  any  person  of  life,  liberty,  or  property, 
without  due  process  of  law,  nor  deny  to  any  person  within  its  juris- 
diction the  equal  protection  of  the  laws,  ...  is  new  in  the 
Constitution  of  the  United  States,  as  a  limitation  upon  the  powers 
of  the  States,  it  is  old  as  a  principle  of  civilized  government.  It  is 
found  in  Magna  Charta,  and,  in  substance  if  not  in  form,  in  nearly 
or  quite  all  the  constitutions  that  have  been  from  time  to  time 
adopted  by  the  several  States  of  the  Union.  By  the  Fifth  Amend- 
ment, it  was  introduced  into  the  Constitution  of  the  United  States 
as  a  limitation  upon  the  powers  of  the  national  government,  and 


CITIZENSHIP  251 


the  origin  and  history  of  this  provision  of  the  Con-    chapter 

stitution  as  found  in  Magna  Charta  and  in  the  V  L_ 

and  XIV  Amendments  of  the  Constitution  of  the 
United  States.  In  that  opinion  he  also  said :  * '  But, 
apart  from  the  imminent  risk  of  a  failure  to  give 
any  definition  which  would  be  at  once  perspicuous, 
comprehensive,  and  satisfactory,  there  is  wisdom, 
we  think,  in  the  ascertaining  of  the  intent  and  appli- 
cation of  such  an  important  phrase  in  the  Federal 
Constitution,  by  the  gradual  process  of  judicial  inclu- 
sion and  exclusion,  as  the  cases  presented  for  deci- 
sion shall  require."  And  in  a  very  recent  case,3* 
Mr.  Justice  McKenna,  delivering  the  opinion  of  the 
court,  reverted  to  this  expression  of  Mr.  Justice  Mil- 
ler and  said  that  the  court  was  still  pursuing  the 
process  of  inclusion  and  exclusion  as  the  cases  were 
presented  for  decision,  but  was  still  unprepared  to 
formulate  a  definition. 

In  delivering  the  opinion  in  Davidson  v.  New  *j*ff*™e 
Orleans,4  Mr.  Justice  Miller  also  used  the  following  xivand 
emphatic  language:    "It  is  not  a  little  remarkable, 
that  while  this  provision  has  been  in  the  Constitu- 
tion of  the  United  States,  as  a  restraint  upon  the 
authority  of  the  Federal  government,  for  nearly  a 
century,  and  while,  during  all  that  time,  the  man- 
ner in  which  the  powers  of  that  government  have 
been  exercised  has  been  watched  with  jealousy,  and 
subjected   to  the   most   rigid   criticism   in   all   its 

by  the  Fourteenth,  as  a  guaranty  against  any  encroachment  upon 
an  acknowledged  right  of  citizenship  by  the  legislatures  of  the 
States."  Munn  v.  Illinois,  (1876)  94  U.  S.  123. 

3*  Orient  Ins.  Co.  v.  Daggs,  (1899)  172  U.  S.  557. 

*  (1877)  96  U.  S.  97. 


252  CITIZENSHIP 


chapter  branches,  this  special  limitation  upon  its  powers  has 
rarely  been  invoked  in  the  judicial  forum  or  the  more 
enlarged  theatre  of  public  discussion;  but  while  it 
has  been  a  part  of  the  Constitution,  as  a  restraint 
upon  the  power  of  the  States,  only  a  very  few  years, 
the  docket  of  this  court  is  crowded  with  cases  in 
which  we  are  asked  to  hold  that  State  courts  and 
State  legislatures  have  deprived  their  own  citizens  of 
life,  liberty,  or  property  without  due  process  of  law. 
There  is  here  abundant  evidence  that  there  exists 
some  strange  misconception  of  the  scope  of  this  pro- 
vision as  found  in  the  XIV  Amendment.  In  fact, 
it  would  seem,  from  the  character  of  many  of  the 
cases  before  us,  and  the  arguments  made  in  them, 
that  the  clause  under  consideration  is  looked  upon 
as  a  means  of  bringing  to  the  test  of  the  decision  of 
this  court  the  abstract  opinions  of  every  unsuccess- 
ful litigant  in  a  State  court  of  the  justice  of  the  de- 
cision against  him,  and  of  the  merits  of  the  legisla- 
tion on  which  such  a  decision  may  be  founded. ' ' 

The  honored  judge  who  uttered  these  words  has 
rejected!7  been  in  his  grave  for  many  years,  but  the  cases  in- 
volving the  abstract  opinions  of  unsuccessful  liti- 
gants in  State  courts  have  continued  to  multiply. 
The  decisions  rendered  by  this  court  are  so  nearly 
unanimous  in  rejecting  the  claims  made,  that  they 
might  well  be  described  as  decisions  upon  what  the 
XIV  Amendment  does  not  mean,  rather  than  adju- 
dications of  rights  arising  under  it. 

The  earliest  interpretation  of  the  meaning  of  this 
clause  was  in  the  case  of  Kennard  v.  Louisiana,5 

c  (1875)   92  U.  S.  480. 


CITIZENSHIP  253 


where  it  was  said  that  due  process  of  law  meant  the    chapter 

trial  of  a  case  in  due  course  of  legal  proceedings,  in  ! — 

a  State  court,  according  to  those  rules  and  forms  ™f  j££. 
which  have  been  established  for  the  protection  of  SEiLhS. 
private  rights.    In  Caldwell  v.  Texas  6  it  was  said 
that  due  process  of  law  is  secured  when  the  laws 
operate  on  all  alike,  and  no  one  is  subjected  to  a 
partial  or  arbitrary  exercise  of  the  powers  of  gov- 
ernment.   In  the  hundreds  of  cases  since  decided  the 
opinions  delivered  merely  ring  the  changes  in  the 
particular  case  upon  this  general  principle. 

A  volume,  interesting  and  instructive,  might  un- 
questionably be  written  upon  the  cases  decided,  but 
it  is  doubtful  if  any  new  principles  would  be  found 
in  them.  Moreover,  as  each  new  case  arises,  those 
intrusted  with  its  conduct  will  be  forced  to  an  exam- 
ination of  the  decisions  in  detail  in  order  to  discover 
in  what  respects  their  case  is  similar  to  the  others 
that  have  gone  before,  and  how  far  the  decisions  al- 
ready rendered  or  passed  upon  by  the  State  affect 
the  case  submitted  to  them.  For  these  reasons,  and 
for  the  further  reason  that  this  subject  of  due  pro- 
cess of  law  is  to  be  treated  in  a  separate  volume,  we 
shall  not  discuss  it  further.7 


To  ascertain  whether  a  particular  process  is  due  process  "we 
must  examine  the  Constitution  itself,  to  see  whether  this  process 
be  in  conflict  with  any  of  its  provisions.  If  not  found  to  be  so, 
we  must  look  to  those  settled  usages  and  modes  of  proceeding  ex- 
isting in  the  common  and  statute  law  of  England,  before  the  emi- 
gration of  our  ancestors,  and  which  are  shown  not  to  have  been 
unsuited  to  their  ^ivil  and  political  condition  by  having  been  acted 
on  by  them  after  the  settlement  of  this  country."  Murray  V.  Ho- 
boken  Land,  etc.,  Co.,  (1855)  18  How.  (U.  S.)  277. 

e  (1891)    137  U.  S.  692. 

T  See  "Due  Process  of  Law"  by  Lucius  P.  McGehee. 


254  CITIZENSHIP 


Chapter 

v.  Of  the  Equal  Protection  of  the  Law. 


*elduen  Nearly  all  the  cases  above  cited  with  reference  to 

of°icaew!  the  abridgment  of  privileges  and  immunities  by  due 
process  of  law  deal  with  the  question  of  what  is  and 
what  is  not  equal  protection  of  the  law,  and  a  full  dis- 
cussion in  this  place  of  the  decisions  in  all  those 
cases  would  not  only  involve  infinite  repetition,  but 
would  occupy  a  space  that  cannot  be  spared  to  it. 
?fxclneg?Ses  ^  nas  ^een  decided  that  the  exclusion  of  colored 
citizens  by  law  from  juries  summoned  to  try  persons 
of  their  race  is  a  denial  of  the  equal  protection  of 
the  law.  The  authorities  on  this  point  are  the  same 
as  those  cited  in  connection  with  the  abridgment  of 
privileges  and  immunities. 

A  State  law  establishing  one  system  of  law  in 
one  portion  of  its  territory  and  another  system  in 


another,  prescribing  the  jurisdiction  of  the  several 
courts  with  reference  to  territory,  subject-matter, 
and  the  finality  of  the  judgments  rendered,  was,  how- 
ever, held  not  to  be  obnoxious  to  the  XVI  Amend- 
ment. That  amendment  was  declared  to  contem- 
plate the  protection  of  persons  and  classes,  and  not 
to  relate  to  territorial  or  municipal  arrangements 
made  for  the  different  portions  of  the  States.8 
?egu?ae-ss  ^0,  too,  in  another  case  a  distinction  was  pointed 

tlons*  out  between  discriminations  concerning  different 
kinds  of  business  in  certain  hours  and  discrimina- 
tions between  different  classes  engaged  in  the  same 

s  Missouri  v.  Lewis,  (1879)   101  U.  S.  22. 


CITIZENSHIP  255 


kind  of  business.    The  former  were  declared  to  be    chapter 
admissible,  the  latter  inadmissible.9  v' 

In  the  case  of  Yick  tWo  v.  Hopkins,1  which  arose  %£$m. 
under  certain  laws  of  San  Francisco  plainly  dis-  inations- 
criminating  against  Chinamen,  and  upon  proof  that 
these  laws  were  partially  administered,  it  was  held 
that  arbitrary  and  unjust  discriminations  founded  on 
differences  of  race  between  persons  otherwise  in  sim- 
ilar circumstances  were  violative  of  the  XIV  Amend- 
ment. The  court  said  that  if  the  law  was  so  framed 
as  to  admit  of  a  partial  administration,  it  was  void. 
But  in  a  later  case  in  which  the  constitution  and  laws 
of  a  State  were  assailed  as  framed  and  fraudulently 
intended  to  exclude  the  negro  population  from  suf- 
frage, the  court  said  that  where  the  provisions  of 
a  State  constitution  or  law  do  not,  on  their  face, 
show  a  discrimination,  and  it  has  not  been  shown 
that  their  actual  administration  is  evil,  but  only  that 
evil  is  possible  under  them,  they  are  not  obnoxious 
to  the  XIV  Amendment.2 

»  Soon  King  v.  Crowley,  (1885)  113  U.  S.  703,  where  the  court 
said :  "  The  specific  regulations  for  one  kind  of  business,  which 
may  be  necessary  for  the  protection  of  the  public,  can  never  be  the 
just  ground  of  complaint  because  like  restrictions  are  not  imposed 
upon  other  business  of  a  different  kind.  The  discriminations  which 
are  open  to  objection  are  those  where  persons  engaged  in  the  same 
business  are  subjected  to  different  restrictions,  or  are  held  entitled 
to  different  privileges  under  the  same  conditions.  It  is  only  then 
that  the  discrimination  can  be  said  to  impair  that  equal  right 
which  all  can  claim  in  the  enforcement  of  the  laws." 

1  (1886)    118  U.  S.  356. 

2  Williams  v.  Mississippi,   (1898)    170  U.  S.  213. 

On  the  other  hand,  "though  the  law  itself  be  fair  on  its  face 
and  impartial  in  appearance,  yet,  if  it  is  applied  and  administered 
by  public  authority  with  an  evil  eye  and  an  unequal  hand,  so  as 
practically  to  make  unjust  and  illegal  discriminations  between  per- 
sons in  similar  circumstances,  material  to  their  rights,  the  denial 


256 


CITIZENSHIP 


Regula- 
tion of 
railroads. 

Statutes 
requiring 
licenses 
for  dogs. 


Rights 
settled    by 
the   XIV 
Amend- 
ment. 


The  creation  of  certain  State  railroad  commis- 
sions with  power  to  regulate  domestic  operation  of 
railroads  was  held  not  to  violate  this  principle. 

The  case  which  is  perhaps  more  signally  illustra- 
tive of  the  extent  to  which  these  extravagant  claims 
have  been  carried  than  any  other  is  that  in  which  a 
man  owning  a  Newfoundland  dog  sued  a  railroad 
for  killing  the  dog.  The  railroad  defended  by 
pleading  a  State  statute  which  denied  to  the  owner  of 
a  dog  the  right  to  sue  for  the  same  as  property  un- 
less he  had  first  registered  the  animal  and  paid  a 
license  fee.  The  court  below  sustained  the  plea,  and 
the  plaintiff  appealed  to  the  Supreme  Court  of  the 
United  States  on  the  ground  that  the  State  law 
denying  the  right  to  sue  for  the  value  of  his  dog 
unless  he  registered  it  and  paid  a  license  abridged 
his  privilege,  deprived  him  of  his  property  without 
due  process  of  law,  and  denied  him  the  equal  protec- 
tion of  the  laws.  It  is  hardly  necessary  to  add  that 
the  Supreme  Court  rejected  the  claims  asserted.3 

Having  now  fully  considered  every  aspect  of  the 
amendment  and  the  decisions  rendered  under  it,  we 
may  leave  the  subject  with  the  single  remark  that 
while  it  has  not  proved  to  be  "a  new  Magna 
Charta,"  the  great  discussions  of  the  true  relations 
between  the  Nation  and  the  States  composing  it,  and 
of  citizens  to  Nation  and  State,  to  which  this  amend- 
ment has  given  rise,  have  resulted  in  a  most  bene- 
ficial and  thorough  understanding  of  what  rights  of 

of  equal  justice  is  still  within  the  prohibition  of  the  Constitution." 
Yick  Wo  v.  Hopkins,    (1886)    118  U.  S.  356. 

s  Sentell  v.  New  Orleans,  etc.,  R.  Co.,  (1897)  166  U.  S.  698. 


CITIZENSHIP  257 


the  citizen  are  derived  from  and  protected  by  the    chapter 
Nation,  and  what  are  derived  from  and  protected        v' 
by  the  States.    It  is  doubtful  whether  without  the 
XIV  Amendment  these  questions  would  have  been 
so  fully  digested  and  settled  in  a  century  of  litiga- 
tion. 

THE  FIFTEENTH  AMENDMENT. 

The  language  of  the  XV  Amendment  is  as  fol-  JrfaTeage 
lows:  "The  right  of  citizens  of  the  United  States 
to  vote  shall  not  be  denied  or  abridged  by  the  United 
States  or  by  any  State  on  account  of  race,  color,  or 
previous  condition  of  servitude.  The  Congress  shall 
have  power  to  enforce  this  article  by  appropriate 
legislation." 

The  amendment  relates  exclusively  to  the  subject 
of  voting.    It  simply  forbids  either  the  Federal  or  to  voting- 
the  State  government  to  deny  or  abridge  the  right  of 
citizens  of  the  United  States  to  vote  '  *  on  account  of 
race,  color,  or  previous  condition  of  servitude." 

It  relates  to  no  other  cause  of  denial  than  race,  dlS5  of 
color,  or  previous  condition  of  servitude.     It  does  tended. 
not  forbid  the  denial  or  abridgment  of  the  right 
to  vote,  by  the  Nation  or  the  State,  for  any  other 
cause. 

It  makes  no  attempt  to  forbid  or  to  punish  the  fncdividuais 
effort  by  an  individual  to  deny  or  abridge  the  right 
of  a  citizen  to  vote,  and  it  gives  to  Congress  no  power 
to  legislate  against  an  individual  who  attempts  ifc'o 
deny  or  abridge  the  right  of  a  citizen  to  vote.  The 
prohibition  of  the  amendment  is  against  the  United 
States  and  the  States  alone.  The  power  given  to 
Congress  to  enforce  the  article  is  power  to  enforce 

17 


258 


CITIZENSHIP 


chapter  it  against  the  United  States  or  the  States ;  which  is 
'  not  power  to  legislate  against  individuals  for  like 
offenses.4  Such  legislation  by  Congress  against  in- 
dividuals has  been  held  to  be  beyond  the  power  of 
Congress,  and  not  "appropriate  legislation"  within 
the  meaning  of  the  amendment. 

The  first  case  in  which  the  power  of  Congress  to 
legislate,  under  this  amendment,  against  individuals, 
for  offenses  committed  against  suffrage,  is  the  case 
of  U.  S.  v.  Reese,5  and  the  last  case  is  the  case  of 
James  v.  Bowman.6  Between  these  two  come  the 
cases  of  U.  S.  v.  Harris 7  and  Baldwin  v.  Franks* 
All  are  to  the  same  effect.  In  the  cases  of  U.  S.  v. 
Cruikshank,9  McPherson  v.  Blacker,1  Wiley  v.  Sink- 


Decisions 
—  origin 
of  right 
of  suf- 
frage. 


*  "  The  principles  of  interpretation  applicable  to  the  first  section 
of  the  Fourteenth  Amendment  are  equally  applicable  to  the  con- 
struction of  the  Fifteenth  Amendment.  The  amendment  simply 
limits  State  power  in  respect  to  suffrage  at  State  elections  by  pro- 
hibiting discrimination  in  the  enjoyment  of  the  elective  franchise 
on  account  of  race,  color,  or  condition.  The  right  to  vote  in  its 
own  election  can  be  conferred  only  by  the  State.  No  one,  therefore, 
but  the  State  can  '  deny  or  abridge '  the  right  to  vote.  The  amend- 
ment is  therefore  properly  addressed  to  the  State.  Individuals  may 
by  unlawful  force  or  fraud  prevent  an  otherwise  lawful  voter  from 
voting.  But  it  would  simply  be  an  act  of  lawless  violence.  The 
right  of  suffrage  would  not  be  denied  or  abridged.  Individuals 
cannot  deny  or  abridge  the  right  of  suffrage,  for  they  cannot  confer 
it.  It  is  a  right  which  is  secured  by,  and  dependent  upon,  law. 
.  .  .  Both  the  Fourteenth  and  the  Fifteenth  Amendments  are 
addressed  to  State  action  through  some  channel  exercising  the  power 
of  the  State."  Karem  v.  U.  S.,  (1903)  121  Fed.  Rep.  258. 

s  (1875)    92  U.  S.  214. 

e  (1903)    190  U.  S.  127. 

7  (1882)    106  U.  S.  640. 

s  (1887)   120  U.  S.  678. 

»  (1875)    92  U.  S.  542,  554. 

i  (1892)    146  U.  S.  1. 


CITIZENSHIP  259 


ler,2  and  Swafford  v.  Templeton?  the  origin  of  suf- 
frage was  fully  discussed.  The  language  used  in 
the  early  case  of  Minor  v.  Happersett?  which  de- 
clared that  suffrage  originated  solely  in  the  States, 
was  modified  to  the  extent  of  declaring  that  the  right 
to  vote  for  members  of  Congress  and  for  presi- 
dential electors  had  its  origin  not  in  any  State  legis- 
lation, but  in  the  Constitution  of  the  United  States. 

In  the  case  of  Neal  v.  Delaware?  it  was  declared  state* CoS- 
that  the  XV  Amendment  annulled  the  word  "  white" 
in  the  State  constitution  of  Delaware  as  a  qualifica- 
tion of  suffrage.  The  Supreme  Court,  in  referring 
to  this,  said,  in  the  case  of  Ex  p.  Yarbrough®  that 
there  are  cases  in  which  the  XV  Amendment  sub- 
stantially confers  the  right  to  vote  on  the  negro,  al- 
though it  gives  him  no  affirmative  right ;  as  where  it 
annuls  the  word  " white"  in  the  State  constitution  of 
Delaware. 

But  it  by  no  means  follows  from  this  prohibition 

J 

of  a  discrimination  on  the  sole  ground  of  race,  color, 
or  previous  condition  of  servitude,  that  any  citizen 
of  the  United  States  is  entitled  to  vote  by  reason  of 
his  color.  The  decisions  cited  in  connection  with 
the  XIV  Amendment,  the  rulings  of  which  are 
equally  applicable  to  the  XV  Amendment,  all  hold 
that  the  States  may  impose  reasonable  qualifications 
upon  suffrage,  and  that  if  those  qualifications  are 
not  based  on  race,  color,  or  previous  condition  of 
servitude,  but  are  applicable  to  all  citizens  alike, 

2  (1900)  179  U.  S.  58. 

s  (1902)  185  U.  S.  487. 

*  (1874)  21  Wall.   (U.  S.)    1«2. 

o  (1880)  103  U.  S.  370. 

6  (1884)  110  U.  S.  651. 


260  CITIZENSHIP 


Chapter    they  are  within  the  power  of  the  States  and  beyond 
v'       the  reach  of  congressional  legislation. 


tation  as 


may  well  conclude  the  discussion  of  this  chap- 

» 

of  adop-  ter  with  the  language  of  the  Supreme  Court  of  the 
United  States  in  the  case  of  Mattox  v.  U.  S.,7  as  fol- 
lows: "We  are  bound  to  interpret  the  Constitution 
in  the  light  of  the  law  as  it  existed  at  the  time  it  was 
adopted,  not  as  reaching  out  for  new  guaranties  of 
the  rights  of  the  citizen,  but  as  securing  to  every  in- 
dividual such  as  he  already  possessed,  .  .  .  such 
as  his  ancestors  had  inherited  and  defended  since  the 
days  of  Magna  Charta." 

i  (1895)  156  U.  S.  237. 


T 


CHAPTEE  VL 

OF  THE  PROTECTION  OF   CITIZENS  ABROAD.  

HE  Federal  statutes  8  provide  that  all  natural-    chapter 

ized  citizens  of  the  United  States,  while  in  ! 

foreign  countries,  are  entitled  to  and  shall  re-   ** 

statutes 


ceive  from  this  government  the  same  protection  of  pr 
person  and  property  which  is  accorded  to  native- 
born  citizens.  Whenever  it  is  made  known  to  the 
President  that  any  citizen  of  the  United  States  has 
been  unjustly  deprived  of  his  liberty  by  or  under  the 
authority  of  any  foreign  government,  it  shall  be  the 
duty  of  the  President  forthwith  to  demand  of  that 
government  the  reason  of  such  imprisonment,  and 
if  it  appears  to  be  wrongful  and  in  violation  of  the 
rights  of  American  citizenship,  the  President  shall 
forthwith  demand  the  release  of  such  citizen ;  and  if 
the  release  so  demanded  is  unreasonably  delayed  or 
refused,  the  President  shall  use  such  means,  not 
amounting  to  acts  of  war,  as  he  may  think  necessary 
and  proper  to  obtain  or  effectuate  his  release;  and 
all  the  facts  and  proceedings  relative  thereto  shall, 
as  soon  as  possible,  be  communicated  by  the  Presi- 
dent to  Congress.  The  means  contemplated  by  the 
two  sections  above  quoted  would  be  in  the  nature  of 
diplomatic  negotiations  between  the  government  of 
the  United  States  and  the  foreign  government  in- 
volved, and  would  be  conducted  through  the  secre- 

s  Rev.  Stat.  U.  S.,  Sees.  2000,  2001 ;   1  Fed.  Stat.  Annot.  789. 

261 


262  CITIZENSHIP 


chapter  tary  of  state  subject  to  rules  and  methods  of  pro- 
cedure which  need  not  be  set  forth  in  a  volume  of 
this  character.  It  goes  without  saying  that  the 
same  measure  of  protection  will  be  extended  by  the 
government  to  native-born  citizens  abroad  as  is  pro- 
vided for  naturalized  citizens.1 

i"In  regard  to  the  protection  of  our  citizens  in  their  rights 
at  home  and  abroad  we  have  no  law  which  divides  them  into 
classes,  or  makes  any  difference  whatever  between  them.  A  native 
and  a  naturalized  American  may,  therefore,  go  forth  with  equal 
security  over  every  sea  and  through  every  land  under  heaven, 
including  the  country  in  which  the  latter  was  born."  Right  of 
Expatriation,  (1859)  9  Op.  Atty.-Gen.  360.  See  also  In  re  Look 
Tin  Sing,  (1884)  21  Fed.  Rep.  907. 

Citizens  by  birth  and  naturalized  citizens  who  reside  abroad 
have  the  same  right  to  protection  of  the  government,  and  stand 
upon  the  same  footing  in  all  other  respects.  Expatriation  —  For- 
eign Domicile  Citizenship,  (1873)  14  Op.  Atty.-Gen.  295. 


CHAPTER  VII. 

OF  EXPATRIATION,  ALIENS,  AND  WHO  MAY  NOT  BECOME 

CITIZENS. 

EXPATRIATION. 

T^HE  doctrine  of  expatriation,  or  the  right  of  a    Chapter 

citizen  formally  to  renounce  allegiance  to  his  — 

country,  and  assume  citizenship  in  a  country  £entafda 
of  his  adoption,  is  one  that  has  been  steadily  advo-  doctrine? 
cated  by  the  American  people  from  the  foundation 
of  their  government.2    It  was  one  of  the  principal 
causes  of  the  War  of  1812  with  Great  Britain. 

Perhaps  no  better  exposition  of  the  American 
view  can  be  found  than  in  that  section  of  the  Eevised 
Statutes  of  the  United  States  which  declares  the 
right  as  follows  (Section  1999) : 

"Whereas  the  right  of  expatriation  is  a  natural 

2  "  In  this  country,  expatriation  is  conceived  to  be  a  fundamental 
right.  As  far  as  the  principles  maintained  and  the  practice  adopted 
by  the  government  of  the  United  States  is  evidence  of  its  existence, 
it  is  fully  recognized.  It  is  constantly  exercised,  and  has  never 
in  any  way  been  restrained."  Stoughton  v.  Taylor,  2  Paine  (U.  S.) 
661. 

The  statement  has  been  made  by  the  United  States  Supreme 
Court  that  "  the  doctrine  of  allegiance  .  .  .  rests  on  the  ground 
of  a  mutual  compact  between  the  government  and  the  citizen  or  sub- 
ject, which,  it  is  said,  cannot  be  dissolved  by  either  party  without 
the  concurrence  of  the  other."  Inglis  v.  Sailor's  Snug  Harbor, 
(1830)  3  Pet.  (U.  S.)  124.  See  also  Talbot  v.  Janson,  (1795)  3 
Ball.  (U.  S.)  162,  et  seq.,  where  Mr.  Justice  Iredell  sets  forth  at 
length  reasons  why  concurrence  on  the  part  of  the  government  is 
essential.  Under  Rev.  Stat.  U.  S.,  Sec.  1999,  quoted  below,  however, 
it  has  been  held  that  assent  on  the  part  of  the  government  re- 

263 


264 


CITIZENSHIP 


Chapter 
VII. 


The  doc- 
trine   sus- 
tained. 


and  inherent  right  of  all  people,  indispensable  to  the 
enjoyment  of  the  rights  of  life,  liberty,  and  the  pur- 
suit of  happiness;  and  whereas  in  recognition  of 
this  principle  this  government  has  freely  received 
emigrants  from  all  nations,  and  invested  them  with 
the  rights  of  citizenship;  and  whereas  it  is  claimed 
that  such  American  citizens,  with  their  descendants, 
are  subjects  of  foreign  states,  owing  allegiance  to 
the  governments  thereof;  and  whereas  it  is  neces- 
sary to  the  maintenance  of  public  peace  that  this 
claim  of  foreign  allegiance  should  be  promptly  and 
finally  disavowed :  therefore  any  declaration,  restric- 
tion, opinion,  order,  or  decision  of  any  officer  of  the 
United  States  which  denies,  restricts,  impairs,  or 
questions  the  right  of  expatriation,  is  declared  in- 
consistent with  the  fundamental  principles  of  the 
Bepublic." 

This  right  to  renounce  citizenship  declared  by 
Congress  has  been  affirmed  and  sustained  in  many 
decisions.3  A  native-born  citizen  of  the  United 

nounced  does  not  obtain  in  the  United  States.  Jennes  v.  Landes, 
(1897)  84  Fed.  Rep.  74;  In  re  Look  Tin  Sing,  (1884)  21  Fed.  Rep. 
907;  Pequignot  v.  Detroit,  (1883)  16  Fed.  Rep.  214. 

3  Right  of  Expatriation,  (1859)  9  Op.  Atty.-Gen.  356;  Pequignot 
v.  Detroit,  (1883)  16  Fed.  Rep.  214;  In  re  Look  Tin  Sing,  (1884) 
21  Fed.  Rep.  908;  Elk  v.  Wilkins,  (1884)  112  U.  S.  107;  Green  v. 
Salas,  (1887)  31  Fed.  Rep.  113;  Boyd  v.  Nebraska,  (1892)  143 
U.  S.  161;  Fong  Yue  Ting  v.  U.  S.,  (1893)  149  U.  S.  715;  Jennes 
V.  Landes,  (1897)  84  Fed.  Rep.  74;  In  re  Rodriguez,  (1897)  81  Fed. 
Rep.  354;  U.  S.  V.  Wong  Kim  Ark,  (1898)  169  U.  S.  704;  Ruckgaber 
v.  Moore,  (1900)  104  Fed.  Rep.  948. 

"The  Act  of  July  27,  1868,  ch.  249,  declaring  the  right  of  ex- 
patriation to  be  a  natural  and  inherent  right  of  all  people,  and 
reciting  that  'in  the  recognition  of  this  principle  this  government 
has  freely  received  emigrants  from  all  nations,  and  invested  them 
with  the  rights  of  citizenship,'  while  it  affirms  the  right  of  every 
man  to  expatriate  himself  from  one  country,  contains  nothing  to 


CITIZENSHIP  265 


States  who  has  chosen  to  expatriate  himself  and    Chapter 

VII 

has  been  naturalized  in  a  foreign  country  is  regarded  ! — 

as  an  alien,  and  he  cannot  again  acquire  naturaliza- 
tion except  by  conforming  to  the  laws  of  the  United 
States  providing  for  the  admission  of  aliens  to 
citizenship.4 

The   section  comprehends  citizens   of  our  own  wj°u™y 
country  as  well  as  of  other  countries.    Where,  there-  citizenship- 
fore,  a  citizen  of  the  United  States  emigrates  to  a 
foreign  country,  and  there  formally  renounces  his 
American  citizenship,  our  government  accepts  the 
act  as  one  of  expatriation.    It  also  recognizes  the 
right  of  even  a  naturalized  citizen  to  resume  his 
original  citizenship  under  such  conditions  as  his  gov- 
ernment requires.5 

Proof  of  expatriation  is  to  be  made  like  that  of  ^xr™t£ri°.f 
any  other  fact  for  which  there  is  no  prescribed  form  t 
of  proof ;  that  is,  by  any  evidence  that  will  convince 
the  judges.6    A  woman  born  in  the  United  States,  of 
American  parents,  married  a  Spanish  subject  resid- 
ing here  but  never  naturalized,  removed  to  Spain, 
and  lived  there  until  her  husband's  death;  it  was 
held  that  such  removal  and  residence  in  Spain  were 
not    evidence    on    her    part    of    an    intention    to 

enable  him  to  become  a  citizen  of  another,  without  being  naturalized 
under  its  authority.  15  Stat.  223;  Rev.  Stat.,  Sec.  1999."  Elk  V. 
Wilkins,  (1884)  112  U.  S.  107.  See  also  Right  of  Expatriation, 
(1859)  9  Op.  Atty.-Gen.  360.  Compare  Expatriation  —  Foreign 
Domicile  Citizenship,  (1873)  14  Op.  Atty.-Gen.  295. 

*  Expatriation  —  Foreign  Domicile  Citizenship,  (1873)  14  Op. 
Atty.-Gen.  295. 

s  Green  v.  Salas,   (1887)   31  Fed.  Rep.  112. 

e  Belcher  v.  Farren,  (1891)  89  Cal.  73;  Green  v.  Salas,  (1887) 
31  Fed.  Rep.  112. 

"  The  general  evidence  of  expatriation  is  actual  emigration,  with 


266 


CITIZENSHIP 


Chapter 
VII. 


Confused 
citizenship 
—  Cont- 
zen's  case. 


expatriate  herself,  and  that  she  still  remained  a 
citizen  of  the  United  States.7 

It  has  been  held  that  the  section  of  the  Eevised 
Statutes  above  quoted  is,  like  any  other  act  of  Con- 
gress, subject  to  alteration  by  Congress  whenever 
the  public  welfare  requires  it.  The  right  of  pro- 
tection which  it  confers  is  limited  to  citizens  of  the 
United  States.  Chinese  persons,  not  born  in  this 
country,  have  never  been  recognized  as  citizens  of 
the  United  States  or  authorized  to  become  such.8 

A  singular  case  of  confused  citizenship  arose 
in  the  case  of  Contzen  v.  U.  S.9  Texas  was  an  inde- 
pendent State  when  admitted  into  the  Union.  The 
effect  of  her  admission  was  to  make  all  the  citizens 
of  Texas  citizens  of  the  United  States.  Such  per- 
sons as  then  resided  in  Texas  and  were  not  then 
naturalized  as  citizens  of  Texas  were  relegated  to 
the  United  States  naturalization  laws.  Contzen  was 
a  minor  alien  separated  from  his  parents,  who  had 
not  been  made  citizens  of  the  United  States.  He 
was  living  in  Texas  at  the  time  of  the  admission  of 
the  State,  and  continued  to  reside  there,  not  deeming 
any  further  naturalization  necessary ;  but,  the  point 
being  raised  against  him,  it  was  held  that,  never 
having  been  a  citizen  of  Texas  and  consequently 
never  having  become  a  citizen  of  the  United  States, 
he  had  no  status  in  the  Court  of  Claims  of  the 
United  States. 

other  concurrent  acts  showing  a  determination  and  intention  to 
transfer  his  allegiance."  Stoughton  v.  Taylor,  2  Paine  (U.  S.)  661. 

TPreto's  Case,   (1862)    10  Op.  Atty.-Gen.  321. 

sFong  Yue  Ting  v.  U.  S.,  (1893)  149  U.  S.  716.  See  also  In  re 
Rodriguez,  (1897)  81  Fed.  Rep.  354. 

»  (1900)  179  U.  S.  191. 


CITIZENSHIP 


267 


Chapter 
VII. 


Aliens. 


The  right  to  exclude  or  expel  aliens  or  any  class 
of  undesirable  strangers  has  been  upheld  by  the  Su-  aliens- 
preme  Court  as  an  inherent  right  of  sovereignty.1 
So  also  the  Act  of  Congress  prohibiting  the  bringing 
in  of  aliens  to  perform  labor  has  been  held  to  be 
constitutional.2  And  in  the  case  of  U.  S.  v.  Wil- 
liams, deporting  an  alien  who  had  illegally  entered 
the  United  States  was  declared  to  be  not  against  the 
XIV  Amendment,  and  the  Alien  Immigration  Act  of 


iFong  Yue  Ting  v.  U.  S.,  (1893)  149  U.  S.  698;  Nishimura 
Ekiu  v.  U.  S.,  (1892)  142  U.  S.  651;  Chinese  Exclusion  Case,  (1889) 
130  U.  S.  581. 

"  It  is  an  accepted  maxim  of  international  law,  that  every  sov- 
ereign nation  has  the  power,  as  inherent  in  sovereignty,  and  essen- 
tial to  self-preservation,  to  forbid  the  entrance  of  foreigners  within 
its  dominions,  or  to  admit  them  only  in  such  cases  and  upon  such 
conditions  as  it  may  see  fit  to  prescribe.  In  the  United  States 
this  power  is  vested  in  the  national  government,  to  which  the 
Constitution  has  committed  the  entire  control  of  international  rela- 
tions, in  peace  as  well  as  in  war.  It  belongs  to  the  political  depart- 
ment of  the  government,  and  may  be  exercised  either  through 
treaties  made  by  the  President  and  Senate,  or  through  statutes  en- 
acted by  Congress."  Nishimura  Ekiu  v.  U.  S.,  (1892)  142  U.  S.  659. 

2  Lees  v.  U.  S.,  (1893)  150  U.  S.  476,  where  the  court  said: 
"  Given  in  Congress  the  absolute  power  to  exclude  aliens,  it  may 
exclude  some  and  admit  others,  and  the  reasons  for  its  discrimina- 
tion are  not  open  to  challenge  in  the  courts.  Given  the  power  to 
exclude,  it  has  a  right  to  make  that  exclusion  effective  by  punishing 
those  who  assist  in  introducing,  or  attempting  to  introduce,  aliens 
in  violation  of  its  prohibition.  The  importation  of  alien  laborers, 
who  are  under  previous  contract  to  perform  labor  in  the  United 
States,  is  the  act  denounced,  and  the  penalty  is  visited  not  upon 
the  alien  laborer  —  although  by  the  amendment  of  February  23, 
1887,  24  Stat.  414,  c.  220,  he  is  to  be  returned  to  the  country  from 
which  he  came  —  but  upon  the  party  assisting  in  the  importation. 
If  Congress  has  power  to  exclude  such  laborers,  as  by  the  cases 
cited  it  unquestionably  has,  it  has  the  power  to  punish  any  who 
assist  in  their  introduction." 


268 


CITIZENSHIP 


Chapter 
VII. 


Aliens 
defined. 


Alien 
friends  — 
privileges 
and    disa- 
bilities in 
general. 


Congress  of  1903,  which  provides  for  the  depor- 
tation of  anarchists,  was  sustained  as  constitu- 
tional.3 

An  alien  is  a  foreigner,  a  person  resident  in  one 
country  but  owing  allegiance  to  another.  In  Eng- 
land he  is  one  born  out  of  the  dominions  and  alle- 
giance of  the  King.  In  the  United  States  he  is  one 
who  is  born  out  of  the  jurisdiction  and  allegiance  of 
the  United  States,  and  who  has  not  been  naturalized 
under  the  Constitution  and  laws  of  the  United  States 
or  of  any  one  of  them.4 

An  alien  friend  is  one  whose  country  is  at  peace 
with  the  country  where  he  resides.  While  he  is 
domiciled  in  this  country  he  is  entitled  to  the  pro- 
tection of  its  laws,  and  owes  to  it,  in  return  for  that 
protection,  temporary  and  local  obedience,  which  con- 
tinues during  the  period  of  his  residence.  He  is 
even  entitled  to  the  benefits  of  the  protection  granted 
by  the  XIV  Amendment  to  the  Constitution  of  the 
United  States.  But  he  is  not  a  citizen.  He  is  sub- 
ject to  the  laws  of  the  land,  may  be  tried  for  crime, 
and  may  even  be  guilty  of  treason  in  giving  aid  and 
comfort  to  the  enemies  of  this  country.5  He  has  a 


3  "  Repeated  decisions  oZ  this  court  have  determined  that  Congress 
has  the  power  to  exclude  aliens  from  the  Unite!  States;  to  pre- 
scribe the  terms  and  conditions  on  which  they  may  come  in;  to 
establish  regulations  for  sending  out  of  the  country  such  aliens  as 
have  entered  in  violation  of  law,  and  to  commit  the  enforcement  of 
such  conditions  and  regulations  to  executive  officers;  that  the  de- 
portation of  an  alien  who  is  found  to  be  here  in  violation  of  law 
is  not  a  deprivation  of  liberty  without  due  process  of  law,  and  that 
the  provisions  of  the  Constitution  securing  the  right  of  trial  by 
jury  have  no  application."  U.  S.  v.  Williams,  (1904)  194  U.  S.  289, 

42  Am.  and  Eng.  Encyc.  of  Law  (2d  ed.)   64. 

5 Carlisle  V.  U.  S.,  (1872)   16  Wall.    (U.  S.)    147. 


CITIZENSHIP  269 


right  to  labor  and  engage  in  trade,  that  right  being  Chapter 
implied  in  the  right  to  reside  in  the  country.  He 
may  sue  and  be  sued  in  the  proper  courts.  He  may 
by  statute  have  the  benefit  of  the  insolvent  laws  and 
the  poor  laws  of  his  temporary  domicile,  if  they  so 
provide.  He  may  obtain  a  patent,  may  file  a  caveat, 
may  register  a  trade  mark  and  protect  it  by  suit,  and 
to  a  certain  extent  he  may  enjoy  the  benefit  of  the 
copyright  laws.  He  may  serve  as  executor  or  ad- 
ministrator, unless  prohibited  by  statute,  and  may 
be  a  corporator  or  a  trustee  of  a  corporation. 
While  not  liable  to  enlistment  for  military  service, 
he  may  voluntarily  waive  that  exemption  and  enlist; 
in  that  case  he  is  subject  to  all  the  liabilities  incurred 
by  a  citizen  soldier,  and  cannot  escape  them  on  the 
ground  that  he  is  an  alien.  But  an  alien  may  not 
vote  or  hold  any  political  office,  State  or  Federal,  or 
be  an  officer  of  a  county,  a  city,  or  a  court,  or  serve 
as  juror.  Alienage  constitutes  a  disqualification  for 
practicing  as  an  attorney  at  law. 

An  alien  "  is  none  the  less  an  alien  because  of  his  having  a 
commercial  domicile  in  this  country.  While  he  lawfully  remains 
here  he  is  entitled  to  the  benefit  of  the  guaranties  of  life,  liberty, 
and  property,  secured  by  the  Constitution  to  all  persons,  of  what- 
ever race,  within  the  jurisdiction  of  the  United  States.  His  per- 
sonal rights  when  he  is  in  this  country,  and  such  of  his  property 
as  is  here  during  his  absence,  are  as  fully  protected  by  the  supreme 
law  of  the  land  as  if  he  were  a  native  or  naturalized  citizen  of  the 
United  States.  But  when  he  has  voluntarily  gone  from  the  country, 
and  is  beyond  its  jurisdiction,  being  an  alien,  he  cannot  reenter  the 
United  States  in  violation  of  the  will  of  the  government  as  ex- 
pressed in  enactments  of  the  law-making  power."  Lem  Moon  Sing 
v.  U.  S.,  (1895)  158  U.  S.  547. 

"This  national  character  which  a  man  acquires  by  residence 
may  be  thrown  off  at  pleasure,  by  a  return  to  his  native  country, 
or  even  by  turning  his  back  on  the  country  in  which  he  has  resided, 
on  his  way  to  another.  To  use  the  language  of  Sir  W.  Scott,  it  is 


270 


CITIZENSHIP 


Chapter 
VII. 


The  rights  of  an  alien  pertaining  to  his  property 
may  be  briefly  stated  as  follows :  At  common  la,w  he 
may  take  real  estate  by  act  of  the  parties  or  by  deed 
or  grant,  or  devise,  or  by  other  act  of  purchase,  but 
cannot  hold  it  except  upon  such  terms  as  may  be  pre~ 
scribed  by  the  State.  An  alien  therefore  takes  a  de- 
feasible estate  good  against  all  excepting  the  State, 
and  good  against  it  until  it  institutes  proceedings 
and  obtains  a  judgment  by  inquest  of  office  or  office 
found,  or  some  legislative  act  equivalent  thereto. 
But  an  alien  does  not  acquire  an  estate  by  operation 
of  law,  as  by  descent;  for  since  the  law  will  be 
deemed  to  do  nothing  in  vain,  it  will  not  cast  descent 
upon  one  who  cannot  by  law  hold  the  estate.  When 
an  alien  seized  of  real  estate  dies  intestate,  as  he 
has  no  inheritable  blood  he  cannot  have  any  legal 
heirs,  and  so  cannot  transmit  the  estate  by  descent, 
and  as  the  law  will  not  deem  it  to  be  in  abeyance 
except  in  case  of  absolute  necessity,  it  vests  imme- 
diately in  the  State  without  office  found.  Alienage 
in  a  mediate  ancestor  would  interrupt  the  descent 
between  the  persons  who  are  capable  of  taking  and 
transmitting  real  estate  by  descent.  An  alien  is  not 
entitled  to  curtesy.  Alienage  in  the  husband  or  wife 

an  adventitious  character  gained  by  residence,  and  which  ceases 
by  nonresidence.  It  no  longer  adheres  to  the  party  from  the 
moment  he  puts  himself  in  motion,  bona  fide,  to  quit  the  country 
sine  animo  revertendi.  (The  Indian  Chief,  3  Rob.  Adm.  17.)  The 
reasonableness  of  this  rule  can  hardly  be  disputed.  Having  once 
acquired  a  national  character  by  residence  in  a  foreign  country,  he 
ought  to  be  bound  by  all  the  consequences  of  it,  until  he  has  thrown 
it  off,  either  by  an  actual  return  to  his  native  country  or  to  that 
where  he  was  naturalized,  or  by  commencing  his  removal,  bona 
fide,  and  without  an  intention  of  returning."  The  Venus,,  (1814) 
8  Cranch  (U.  S.)  280. 


CITIZENSHIP  271 


bars  the  wife  from  claiming  dower.     Such  are,  in    Chapter 

VII 

general  terms,  the  common-law  rulings  concerning  ' 

aliens. 

In  the  United  States  the  common-law  doctrine 
concerning  the  rights  of  aliens  has  been  greatly 
modified  by  statutes.  In  nearly  all  of  the  States 
statutes  have  been  enacted  by  which  the  rights  of 
aliens  are  defined,  and  in  many  instances  resident 
aliens  are  placed  on  the  same  footing  as  natural  born 
citizens,  touching  the  acquisition,  holding,  and  trans- 
mission of  property,  both  real  and  personal.  In 
some  of  the  States  the  same  liberal  policy  has  been 
pursued  toward  nonresident  aliens,  while  in  others 
these  privileges  are  accorded  with  restrictions,  and 
in  some  cases  denied  altogether.  It  will  be  neces- 
sary for  the  student  interested  in  this  question  of 
the  rights  of  an  alien  in  real  or  personal  property, 
in  any  particular  State,  to  examine  the  statutes  and 
decisions  of  that  State  relating  to  the  subject. 

Under  statutes  of  the  United  States  all  mining 
lands  and  territories  belonging  to  the  United  States 
are  open  for  the  purpose  of  exploration  and  pur- 
chase to  citizens  of  the  United  States,  and  to  those 
who  have  declared  their  intention  to  become  citizens ; 
and  all  such  persons  who  have  discovered  mineral 
lands  and  made  location  according  to  law  have  the 
exclusive  right  of  possession  thereof. 

At  common  law,  the  disability  of  aliens  in  respect 
to  the  ownership  of  real  estate  did  not  extend  to  the  s 
case  of  personal  property,  and  they  were  capable  of 
acquiring,  holding,  and  transmitting  movable  prop- 
erty in  like  manner  as  citizens,  and  might  bring  suit 
for  the  protection  and  recovery  of  such  property. 


272  CITIZENSHIP 


Chapter  The  statutes  regulating  the  rights  of  aliens  concern- 
VIL  ing  personal  property  have  generally  been  merely 
declaratory  of  the  common-law  principle. 

Taxation.  An  alien  is  as  liable  to  taxation  as  is  a  citizen, 
since  the  right  to  tax  results  from  the  general  pro- 
tection afforded  to  himself  and  his  property. 

Treaties.  The  status  of  citizens  of  one  country  residing  in 

or  traveling  through  foreign  countries  is  frequently 
the  subject  of  treaties  between  their  respective  na- 
tions ;  such  treaties,  when  made,  are  the  supreme  law 
of  the  land,  and  any  State  law  denying  to  an  alien 
the  right  secured  by  such  a  treaty  would  be  uncon- 
stitutional, null,  and  void. 

mie?— ene"        An  alien  enemy  is  one  who  owes  allegiance  to  an 

andnd1st    adverse   belligerent.    He   has   no  political   rights. 

bilities  in       -,--,-  . ,  .  .  _     ,   . 

general.  He  may  remain  in  the  country  at  war  with  his  own, 
and,  when  not  chargeable  with  actual  hostility  or 
crime,  has  an  implied  license  to  remain  until  ordered 
out  of  the  country,  and  on  leaving  it  he  is  allowed 
to  remove  his  goods  and  effects,  and  is  protected  in 
his  other  rights.  During  the  pendency  of  war  his 
rights  are  in  abeyance.  An  alien  enemy  is  not  per- 
mitted to  prosecute  suits  in  court,  and  any  such  suit 
pending  abates,  and  the  right  of  action  is  suspended, 
until  the  cessation  of  hostilities.  But  while  he  may 
not  sue,  he  may  be  sued,  and  his  property  is  subject 
to  legal  process,  and  in  such  case  he  may  make  de- 
fense in  person  or  by  counsel. 

All  intercourse  between  citizens  of  two  hostile 
nations,  except  such  as  may  be  permitted  by  the  au- 
thorities conducting  the  war,  is  prohibited  while  war 
is  flagrant  between  their  respective  countries.  This 
includes  any  act  or  contract  which  tends  to  increase 


CITIZENSHIP  273 


or 


the  resources  of  the  enemy,  or  any  kind  of  trading    chapter 
or    commercial    dealing    or    intercourse.    But    the  ' 

tendency  of  the  law  of  nations  of  modern  times  is  to 
exempt  individuals  and  private  contracts  from  in- 
jury or  restraint  in  consequence  of  war  between  the 
governments  of  the  contracting  parties.  The  effect 
of  an  outbreak  of  hostilities  is  to  revoke  agencies  in 
the  country  of  the  enemy,  for  general  purposes,  dur- 
ing the  pendency  of  the  war;  but  an  agency  to  pre- 
serve or  collect  property  may  be  created,  and  war 
does  not  necessarily  revoke  a  special  agency  estab- 
lished before  it  began.6 

The  Federal  statutes  on  the  subject  of  aliens7 
provide  that,  whenever  war  is  declared  between  the  Sen0 
United  States  and  a  foreign  government,  and  in 
certain  other  contingencies,  all  natives,  citizens, 
denizens,  or  subjects  of  the  hostile  nation,  being 
males  of  the  age  of  fourteen  years  and  upwards,  who 
shall  be  within  the  United  States  and  not  actually 
naturalized,  shall  be  liable  to  be  apprehended,  re- 
strained, and  removed.  Power  is  given  to  the  Presi- 
dent, by  proclamation  or  other  public  act,  to  direct 
the  conduct  to  be  observed  on  the  part  of  the  United 
States  toward  aliens  who  become  so  liable,  or  to 
provide  for  their  removal,  and  generally  to  establish 
regulations  concerning  them  for  the  public  safety. 
Provision  is  also  made,  in  case  the  individual  is  not 
chargeable  with  actual  hostility  or  crime  against  the 
public  safety,  for  allowing  him  to  recover  and  dis- 


6  The  authorities  in  support  of  the  above  general  statements  will 
be  found  very  fully  set  forth  in  the  Am.  and  Eng.  Encyc.  of  Law 
(2d  ed.),  title  "Aliens,"  Vol.  2,  pp.  64-90. 

7  See  1  Fed.  Stat.  Annot.  435. 

18 


274 


CITIZENSHIP 


Chapter 
VII. 


Jurisdic- 
tion  and 
powers  of 
courts. 


Right  to 
hold  real 
estate  in 
Terri- 
tories. 


Forfeiture 
of   citizen* 
ship  by 
desertion. 


pose  of  and  remove  his  goods  and  effects,  and  to 
depart  within  reasonable  tii  to  be  ascertained  as 
prescribed.8 

After  the  presidential  proclamation,  jurisdiction 
is  given  to  the  federal  courts  to  cause  any  alien  who 
lingers  in  the  jurisdiction  to  be  apprehended  and 
conveyed  before  the  court.  The  courts  are  empow- 
ered to  cause  such  alien  to  be  removed  or  to  give 
security  for  good  behavior,  or  otherwise  to  restrain 
him,  conformably  to  the  proclamation  or  regulations 
established,  and  to  imprison  or  otherwise  secure  him 
until  these  orders  are  performed.  Power  is  given 
to  the  marshal  of  the  district  in  which  such  alien  is 
apprehended  to  carry  out  the  orders  of  the  court. 

To  an  Act  of  Congress  passed  March  2,  1897,9 
fixing  the  rights  of  aliens  to  hold  and  own  real  es- 
tate in  the  Territories  of  the  United  States  as  de- 
fined under  that  Act,  the  student  is  referred  for  the 
particular  conditions  upon  which  the  alien  may  hold 
the  same. 

It  is  also  provided  by  a  Federal  statute  that  all 
persons  who  deserted  the  military  and  naval  service 
of  the  United  States  and  did  not  return  thereto  or 
report  themselves  to  a  provost  marshal  within  sixty 
days  after  the  issuance  of  a  proclamation  by  the 
President  dated  the  llth  day  of  March,  1865,  are 
deemed  to  have  voluntarily  relinquished  and  for- 
feited their  rights  of  citizenship  as  well  as  their  right 
to  become  citizens ;  and  that  such  deserters  are  for- 
ever incapable  of  holding  any  office  of  trust  or  profit 


8  Rev.  Stat.  U.  S.,  Sees.  4067,  4068;  1  Fed.  Stat.  Annot.  436. 
»29  Stat.  at  L.,  c.  363,  p.  618;  1  Fed.  Stat.  Annot.  437. 


CITIZENSHIP  275 


in  the  United  States  or  of  exercising  any  rights  of  chapter 
citizens  thereof.1  But  the  provisions  of  this  sec- 
tion  can  take  effect  only  upon  conviction  by  a  court 
martial.2  Another  section  of  the  Revised  Statutes  3 
provides  that  every  person  who  hereafter  deserts 
the  military  or  naval  service  of  the  United  States, 
or  who,  being  duly  enrolled,  departs  the  jurisdiction 
of  the  district  in  which  he  is  enrolled  or  goes  beyond 
the  limits  of  the  United  States  with  intent  to  avoid 
a  draft  in  the  United  States  service  lawfully  ordered, 
shall  be  liable  to  all  the  penalties  and  forfeitures  of 
the  section  last  above  quoted.  This  law  was  enacted 
March  3,  1865,  and  is  believed  to  be  still  in  force. 
The  penalties  named  by  it  can  be  enforced  only  after 
conviction  by  court  martial.4 

Immigration  of  Chinese. 

Besides  the  disqualifications  above  enacted,  a  se- 
ries  of  laws  beginning  with  an  Act  dated  May  6,  Acts' 
1882,  and  ending  with  the  Act  of  April  2,  1902,5 
has  been  passed  by  Congress  suspending  the  immi- 
gration of  Chinese.  By  the  terms  of  these  sundry 
acts,  Chinese  immigration  has  been  forbidden  indefi- 
nitely. The  laws  prescribing  the  terms  upon  which 
Chinese  may  come  to  this  country  have  been  made 
very  stringent,  and  under  the  authorities  cited  in 

iRev.  Stat.  U.  S.,  Sec.  1996;  1  Fed.  Stat.  Annot.  788. 

2  Kurtz  v.  Moffitt,    (1885)    115  U.  S.  501. 

3  Rev.  Stat.  U.  S.,  Sec.  1998;  1  Fed.  Stat.  Annot.  788. 

4  Kurtz  v.  Moffitt,   (1885)   115  U.  S.  501. 

»22  Stat.  at  Large,  ch.  126,  58;  23  Stat.  L.  115,  ch.  220;  25 
Stat.  L.  ch.  1015,  p.  476;  25  Stat.  L.  504,  ch.  1064;  27  Stat.  L. 
25,  ch.  60;  28  Stat.  L.  7,  ch.  14;  28  Stat.  L.  581,  Resolution  19; 
31  Stat.  L.  1093,  ch.  845;  32  Stat.  L.  176,  ch.  641.  See  1  Fed.  Stat. 
Annot.  754,  title  "  Chinese  Exclusion." 


276  CITIZENSHIP 


chapter    connection  with  the  subject  of  aliens  their  exclusion 

! and  deportation  by  these  laws  have  been  sustained.6 

Under  their  operation  it  is  impossible  for  the  Chi- 
nese to  come  to  this  country  or  to  be  naturalized, 
and  this  may  be  said  to  be  the  only  limitation  placed 
upon  immigration  to  the  United  States  from  any 
great  nation  of  the  globe. 

for  The  wisdom  of  these  laws  has  been  gravely  ques- 
tioned. Sundry  influences  have  produced  this  legis- 
lation, chiefly  that  of  certain  classes  in  the  extreme 
West  who  have  feared  the  result  of  competition  with 
the  Chinese.  On  the  other  hand,  powerful  influences 
are  at  work  to  induce  the  repeal  of  these  exclusive 
measures.  No  one  will  question  the  propriety  of 
limiting  the  political  rights  of  alien  and  antagonistic 
people  who  are  permitted  to  enter  this  country ;  but 
the  conditions  of  American  labor  are  such  that  the 
need  of  additional  labor  is  sorely  felt,  especially  in 
agricultural  sections,  whence  of  late  years  immense 
numbers  of  laborers  have  flocked  to  the  cities. 
Throughout  large  sections  of  the  South  and  West  a 
great  and  crying  need  of  labor  is  felt  to-day.  The 
industry,  thrift,  and  humble  contentment  of  the  Chi- 
nese would  doubtless  furnish  a  most  desirable  labor 
element  to  many  sections  in  which  laborers  are 
scarce.  A  critic  of  American  institutions  has  cyn- 
ically said  that  * '  the  idea  that  every  citizen  is  a  sov- 
ereign has  been  cultivated  in  the  United  States  until 
no  citizen  is  content  to  be  a  servant. ' '  Whether  that 
statement  is  exaggerated  or  not,  it  is  certain  that 
a  great  and  crying  need  of  the  nation  at  present  is 

6  A  convenient  collection  of  these  laws  and  the  decisions  under 
them  may  be  found  in  1  Fed.  Stat.  Annot.,  pp.  754-783. 


CITIZENSHIP  277 


some  class  of  laboring  men  which  shall  not  deem    chapter 

itself  the  natural  antagonist  of  its  employer.    We  ! — 

sorely  need  a  laboring  class  not  composed  of  indi- 
viduals who  aspire  to  higher  education,  political 
prominence,  social  importance,  and  even  the  presi- 
dency of  the  United  States. 

When  the  nation  becomes  convinced,  by  its  long 
trouble  with  labor  problems  such  as  have  vexed  it 
for  several  decades,  that  the  Chinese  population  pos- 
sesses what  it  needs,  and  that  the  Chinese  are  even 
less  objectionable  than  many  elements  now  in  the 
country,  we  may  look  for  a  repeal  of  the  Chinese 
exclusion  laws.  With  those  repealed  America  will 
in  truth  be  the  asylum  of  the  oppressed  of  all 
nations. 


APPENDIX  A. 

List  of  cases  decided  by  the  United  States  Supreme  Court  under 
the  XIV  Amendment  to  the  Constitution,  arranged  in  the  order  01 
their  rendition. 

Slaughter-House  Cases,    (1872)    16  Wall.    (U.  S.)   36 

Bradwell  v.  Illinois,   (1872)    16  Wall.    (U.  S.)    133 

Bartemeyer  v.  Iowa,    (1873)    18  Wall.    (U.  S.)    133 

Minor  v.  Happersett,    (1874)    21  Wall.    (U.  S.)    162 

Walker  v.  Sauvinet,  (1875)  92  U.  S.  90 

Kennard  v.  Louisiana,   (1875)   92  U.  S.  480 

U.  S.  v.  Cruikshank,  (1875)  92  U.  S.  543 

Munn  v.  Illinois,   (1876)   94  U.  S.  113 

Hall  v.  De  Cuir,   (1877)   95  U.  S.  485 

Pennoyer  v.  Neff,   (1877)   95  U.  S.  714 

Davidson  v.  New  Orleans,    (1877)   96  U.  S.  97 

Richmond,  etc.,  R.  Co.  v.  Richmond,  (1877)  96  U.  S.  521 

Kirtland  v.  Hotchkiss,    (1879)    100  U.  S.  491 

Strauder  v.  West  Virginia,   (1879)   100  U.  S.  303 

Virginia  v.  Rives,   (1879)   100  U.  S.  313 

Ex  p.  Virginia,  (1879)   100  U.  S.  339. 

Missouri  v.  Lewis,    (1879)    101  U.  S.  22 

Neal  17.  Delaware,   (1880)   103  U.  S.  370 

Kelly  v.  Pittsburgh,   (1881)    104  U.  S.  78 

Fox  I?.  Cincinnati,    (1881)    104  U.  S.  783 

Pace  V.  Alabama,   (1882)    106  U.  S.  583 

U.  S.  V.  Harris,    (1882)    106  U.  S.  629 

Gross  v.  U.  S.  Mortgage  Co.,  (1883)   108  U.  S.  477 

Civil  Rights  Cases,    (1883)    109  U.  S.  3 

Louisiana  v.  New  Orleans,   (1883)    109  U.  S.  285 

Hurtado  v.  California,   (1884)    110  U.  S.  516 

Ex  p.  Yarbrough,   (1884)    110  U.  S.  651 

Hagar  v.  Reclamation  Dist.,  No.  108,   (1884)   111  U.  S.  701 

Elk  v.  Wilkins,    (1884)    112  U.  S.  94 

Foster  v.  Kansas,   (1884)   112  U.  S.  201 

U.  S.  v.  Waddell,  (1884)    112  U.  S.  77 

Barbier  v.  Connolly,   (1885)   113  U.  S.  27 

Head  v.  Amoskeag  Mfg.  Co.,   (1885)    113  U.  S.  9 

Provident  Sav.  Inst.  v.  Jersey  City,  (1885)   113  U.  S.  506 

279 


280  APPENDIX 


Soon  King  v.  Crowley,   (1885)    113  U.  S.  703 

Ex  p.  Reggel,   (1885)    114  U.  S.  642 

Wurts  v.  Hoagland,    (1885)    114  U.  S.  606 

Kentucky  Railroad  Tax  Cases,  (1885)   115  U.  S.  321 

Missouri  Pac.  R.  Co.  v.  Humes,   (1885)    115  U.  S.  513 

Campbell  v.  Holt,    (1885)    115  U.  S.  620 

Brown   v.   Grant,    (1886)    116   U.   S.   207 

Railroad  Commission  Cases,  (1886)   116  U.  S.  307 

Presser  v.  Illinois,   (1886)    116  U.  S.  252 

Boyd  v.  U.  S.,   (1886)    116  U.  S.  616 

Royall  v.  Virginia,   (1886)    116  U.  S.  572 

Walling  v.  Michigan,    (1886)    116  U.  S.  446 

Arrowsmith  v.  Harmoning,   (1886)    118  U.  S.  194 

Yick  Wo  v.  Hopkins,   (1886)    118  U.  S.  356 

Santa    Clara    County    v.    Southern    Pac.    R.    Co.,     (1886)     118- 
U.  S.  394 

Philadelphia  F.  Assoc.  v.  New  York,  (1886)  119  U.  S.  110 

Schmidt  v.  Cobb,   (1886)   119  U.  S.  286 

Hayes  v.  Missouri,    (1887)    120  U.  S.  68 

Baldwin  v.  Franks,   (1887)   120  U.  S.  679 

Barren  v.  Burnside,    (1887)    121  U.  S.  186 

Church  v.  Kelsey,   (1887)   121  U.  S.  282 

Spies  v.  Illinois,   (1887)    123  U.  S.  131 

Sands  v.  Manistee  River  Imp.  Co.,   (1887)   123  U.  S.  288 

Mugler  v.  Kansas,   (1887)    123  U.  S.  623 

Pembina  Consol.  Silver  Min.,  etc.,  Co.  v.  Pennsylvania,   (1888) 
125  U.  S.  181 

Redemption  Bank  v.  Boston,   (1888)    125  U.  S.  60 

Spencer  v.  Merchant,   (1888)    125  U.  S.  345. 
Dow  V.  Beidelman,    (1888)    125  U.  S.  680 

California  v.  Central  Pac.  R.  Co.,  (1888)    127  U.  S.  40 

Ro  Bards  v.  Lamb,    (1888)    127  U.   S.   58 

Missouri  Pac.  R.  Co.  v.  Mackey,   (1888)    127  U.  S.  206 

Minneapolis,  etc.,  R.  Co.  v.  Herrick,  (1888)   127  U.  S.  210 

Powell  v.  Pennsylvania,  (1888)   127  U.  S.  678 

Mahon  v.  Justice,   (1888)   127  U.  S.  700 

Kidd  v.  Pearson,    (1888)    128  U.  S.  1 

Nashville,  etc.,  R.  Co.  v.  Alabama,  (1888)   128  U.  S.  96 

Walston  v.  Nevin,   (1888)    128  U.  S.  578 

Minneapolis,  etc.,  R.  Co.  v.  Beckwith,  (1889)  129  U.  S.  26 

Kimmish'tf.  Ball,  (1889)   129  U.  S.  222 

Dent  v.  West  Virginia,  (1889)   129  U.  S.  114 

Huling  v.  Kaw  Valley  R.,  etc.,  Co.,  (1889)   130  U.  S.  559 

Freeland  v.  Williams,   (1889)   131  U.  S.  405 

Cross  v.  North  Carolina,  (1889)   132  U.  S.  131 


APPENDIX  281 


Pennie  v.  Reis,    (1889)    132  U.   S.  464 

Sugg  v.  Thornton,   (1889)    132  U.  S.  524 

Louisville,  etc.,  R.  Co.  v.  Mississippi,  (1890)   133  U.  S.  587 

Davis  v.  Season,  (1890)    133  U.  S.  333 

Palmer  v.  McMahon,    (1890)    133  U.  S.  661 

Eilenbecker  v.  District  Ct.,   (1890)    134  U.  S.  31 

Bell's  Gap  R.  Co.  v.  Pennsylvania,   (1890)    134  U.  S.  232 

Chicago,  etc.,  R.  Co.  v.  Minnesota,  (1890)   134  U.  S.  418 

Minneapolis  Eastern  R.  Co.  v.  Minnesota,  (1890)   134  U.  S.  467 

Louisville,  etc.,  R.  Co.  v.  Woodson,   (1890)    134  U.  S.  623 

Home  Ins.  Co.  v.  New  York,   (1890)    134  U.  S.  594 

Cherokee  Nation  v.  Southern  Kansas  R.  Co.,    (1890)    135  U.  S. 

641 

In  re  Kemmler,  (1890)   136  U.  S.  436 
York  v.  Texas,  (1890)    137  U.  S.  15 
Crowley  v.  Christensen,    (1890)    137  U.  S.  91 
Wheeler   v.   Jackson,    (1890)    137   U.    S.   245 
Holden  v.  Minnesota,    (1890)    137  U.  S.  483 
In  re  Converse,   (1891)    137  U.  S.  624 
Caldwell  v.  Texas,  (1891)   137  U.  S.  692 
Kauffman  v.  Wootters,   (1891)    138  U.  S.  285 
Leeper  v.  Texas,    (1891)    139  U.  S.  462 
In  re  Manning,   (1891)   139  U.  S.  504 
Natal  v.  Louisiana,    (1891)    139  U.  S.  621 
In  re  Shibuya  Jugiro,   (1891)   140  U.  S.  291 
Lent  V.  Tillson,   ( 1891 )   140  U.  S.  316 
In  re  Rahrer,   (1891)   140  U.  S.  545 
New  Orleans  v.  New  Orleans  Water  Works  Co.,    (1891)    142 

U.  S.  79 

McElvaine  v.  Brush,  (1891)   142  U.  S.  155 
Kaukauna  Water  Power  Co.  v.  Green  Bay,  etc.,  Canal  Co.,  (1891) 

142  U.  S.  254 

Charlotte,  etc.,  R.  Co.  v.  Gibbes,  (1892)   142  U.  S.  386 
Pacific  Express  Co.  V.  Seibert,  ( 1892 )  142  U.  S.  339 
Horn  Silver  Min.  Co.  v.  New  York,   (1892)    143  U.  S.  305 
Budd  v.  New  York,   (1892)    143  U.  S.  517 
Schwab  v.  Berggren,   (1892)    143  U.  S.  442 
Fielden  v.  Illinois,   (1892)   143  U.  S.  452 
O'Neil  v.  Vermont,  (1892)    144  U.  S.  323 
New  York  v.  Squire,   (1892)    145  U.  S.  175 
Brown  v.  Smart,  (1892)   145  U.  S.  455 
McPherson  v.  Blacker,  (1892)   146  U.  S.  1 
Morley  v.  Lake  Shore,  etc.,  R.  Co.,   (1892)   146  U.  S.  162 
Hallinger  v.  Davis,    (1892)    146  U.  S.  314 
Yesler  v.  Washington  Harbor  Line  Com'rs,  (1892)  146  U.  S.  646 


232  APPENDIX 

Jennings  v.  Coal  Ridge  Imp.,  etc.,  Co.,  (1893)   147  U.  S.  147 

Giozza  v.  Tiernan,   (1893)   148  U.  S.  657 

Paulsen  v.  Portland,   (1893)    149  U.  S.  30 

Minneapolis,  etc.,  R.  Co.  v.  Emmons,  (1893)   149  U.  S.  364 

Fong  Yue  Ting  v.  U.  S.,  (1893)   149  U.  S.  698 

McNulty  v.  California,   (1893)    149  U.  S.  645 

Columbus  Southern  R.  Co.  v.  Wright,  (1894)   151  U.  S.  470 

New  York,  etc.,  R.  Co.  v.  Bristol,  (1894)   151  U.  S.  556 

Lawton  V.  Steele,  (1894)  152  U.  S.  133 

Montana  Co.  v.  St.  Louis  Min.,  etc.,  Co.,  (1894)  152  U.  S.  160 

Duncan  v.  Missouri,   (1894)    152  U.  S.  377 

Marchant  v.  Pennsylvania  R.  Co.,  (1894)   153  U.  S.  380 

Brennan  v.  Titusville,  (1894)   153  U.  S.  289 

Brass  v.  North  Dakota,   (1894)    153  U.  S.  391 

Eagle  Ins.  Co.  v.  Ohio,   (1894)    153  U.  S.  446 

McKane  v.  Durston,    (1894)    153  U.  S.  684 

Scott  v.  McNeal,    (1894)    154  U.  S.  34 

Covington,  etc.,  Bridge  Co.  v.  Kentucky,  (1894)   154  U.  S.  204 

Reagan  v.  Farmers'  L.  &  T.  Co.,   (1894)    154  U.  S.  362 

Pittsburgh,  etc.,  R.  Co.  v.  Backus,  (1894)  154  U.  S.  421 

Pearce  v.  Texas,   (1894)    155  U.  S.  311 

St.  Louis,  etc.,  R.  Co.  v.  Gill,  (1895)   156  U.  S.  649 

Mattox  v.  U.  S.,  (1895)   156  U.  S.  237 

Emert  v.  Missouri,   (1895)    156  U.  S.  296 

Bergemann  v.  Backer,   (1895)   157  U.  S.  655 

Gray  v.  Connecticut,    (1895)    159  U.  S.  74 

Central  Land  Co.  v.  Laidley,   (1895)    159  U.  S.  103 

Mills  V.  Green,   (1895)    159  U.  S.  651 

Moore  V.  Missouri,  (1895)  159  U.  S.  673 

Winona,  etc.,  Land  Co.  v.  Minnesota,   (1895)   159  U.  S.  526 

Iowa  Cent.  R.  Co.  v.  Iowa,   (1896)   160  U.  S.  389 

Eldridge  V.  Trezevant,   (1896)    160  U.  S.  452 

Geer  v.  Connecticut,    (1896)    161  U.  S.  519 

Gibson  v.  Mississippi,    (1896)    162  U.  S.  565 

Western  Union  Tel.  Co.  v.  Taggart,  (1896)  163  U.  S.  1 

Lowe  v.  Kansas,   (1896)   163  U.  S.  81 

Murray  v.  Louisiana,    (1896)    163  U.  S.  101 

Hennington  v.  Georgia,  (1896)   163  U.  S.  299 

Plessy  v.  Ferguson,    (1896)    163  U.  S.  537 

Fallbrook  Irrigation  Dist.  V.  Bradley,   (1896)    164  U.  S.  112 

Missouri  Pac.  R.  Co.  v.  Nebraska,    (1896)    164  U.  S.  403 

Covington,    etc.,   Turnpike   Road   Co.    v.    Sandford,     (1896)     164 

U.  S.  578 

St.  Louis,  etc.,  R.  Co.  v.  Mathews,  (1897)   165  U.  S.  1 
Gulf,  etc.,  R.  Co.  v.  Ellis,  (1897)   165  U.  S.  150 
Jones  v.  Brim,  (1897)   165  U.  S.  180 


APPENDIX  283 

Adams  Express  Co.  v.  Ohio  State  Auditor,  (1897)   165  U.  S.  194 

Western  Union  Tel.  Co.  v.  Indiana,  (1897)    165  U.  S.  304 

Allgeyer  v.  Louisiana,   (1897)    165  U.  S.  579 

New  York,  etc.,  R.  Co.  V.  New  York,  (1897)  165  U.  S.  628 

Allen  v.  Georgia,  (1897)  166  U.  S.  138 

Chicago,  etc.,  R.  Co.  V.  Chicago,   (1897)    166  U.  S.  226 

Gladson  v.  Minnesota,  (1897)  166  U.  S.  427 

Sentell  v.  New  Orleans,  etc.,  R.  Co.,  (1897)   166  U.  S.  698 

Henderson  Bridge  Co.  v.  Kentucky,  (1897)  166  U.  S.  150 

Davis  v.  Massachusetts,   (1897)   167  U.  S.  43 

Merchants',  etc.,  Bank  v.  Pennsylvania,  (1897)   167  U.  S.  461 

Turner  v.  New  York,  (1897)    168  U.  S.  90- 

Craemer  v.  Washington,   (1897)   168  U.  S.  124 

Hodgson  v.  Vermont,   (1897)    168  U.  S.  262 

Nobles  v.  Georgia,  (1897)   168  U.  S.  398 

McHenry  v.  Alford,   (1898)    168  U.  S.  651 

Holden  v.  Hardy,  (1898)  169  U.  S.  366 

Smyth  v.  Ames,   (1898)   169  U.  S.  466 

Wilson  v.  North  Carolina,  (1898)   169  U.  S.  586 

Savings,  etc.,  Soc.  v.  Multnomah  County,  (1898)  169  U.  S.  421 

Backus  v.  Fort  St.  Union  Depot  Co.,  (1898)  169  U.  S.  557 

Williams  v.  Mississippi,  (1898)  170  U.  S.  213 

Magoun  v.  Illinois  Trust,  etc.,  Bank,  (1898)  170  U.  S.  283 

Williams  v.  Eggleston,   (1898)    170  U.  S.  304 

Tinsley  v.  Anderson,  (1898)   171  U.  S.  101 

King  v.  Mullins,  (1898)  171  U.  S.  404 

New  York  v.  Roberts,   (1898)    171  U.  S.  658 

Meyer  V.  Richmond,  (1898)   172  U.  S.  83 

Blake  v.  McClung,    (1898)    172  U.  S.  239 

Norwood  v.  Baker,  (1898)   172  U.  S.  269 

Orient  Ins.  Co.  v.  Daggs,  (1899)  172  U.  S.  557 

Wilson  v.  Eureka  City,  (1899)   173  U.  S.  33 

Dewey  v.  Des  Moines,  (1899)   173  U.  S.  193 

St.  Louis,  etc.,  R.  Co.  v.  Paul,   (1899)   173  U.  S.  404 

Lake  Shore,  etc.,  R.  Co.  v.  Smith,   (1899)   173  U.  S.  684 

Central  L.  &  T.  Co.  v.  Campbell  Commission  Co.,    (1899)    173 

U.  S.  84 

Henderson  Bridge  Co.  V.  Henderson,  (1899)   173  U.  S.  592 
Atchison,  etc.,  R.  Co.  V.  Matthews,  (1899)    174  U.  S.  99 
Brown  v.  New  Jersey,  (1899)   175  U.  S.  172 
Addyston  Pipe,  etc.,  Co.  v.  U.  S.,  (1899)   175  U.  S.  211 
Tullis  v.  Lake  Erie,  etc.,  R.  Co.,   (1899)   175  U.  S.  348 
Gumming  v.  Board  of  Education,  (1899)    175  U.  S.  528 
Bolln  v.  Nebraska,   (1900)    176  U.  S.  83 
Clark  v.  Kansas  City,   (1900)   176  U.  S.  114 
Adirondack  R.  Co.  v.  New  York,  (1900)   176  U.  S.  335 


284  APPENDIX 


Roller  v.  Holly,    (1900)    176  U.  S.  398 

Weyerhaueser  v.  Minnesota,    (1900)    176  U.  S.  550 

Maxwell  v.  Dow,   (1900)    176  U.  S.  581 

Petit  v.  Minnesota,  (1900)   177  U.  S.  164 

Gundling  v.  Chicago,   (1900)    177  U.  S.  183 

Ohio  Oil  Co.  v.  Indiana,  (1900)  177  U.  S.  190 

Louisville,  etc.,  R.  Co.  v.  Schmidt,  (1900)   177  U.  S.  230 

Saranac  Land,  etc.,  Co.  v.  Comptroller,  (1900)  177  U.  S.  318 

Carter  v.  Texas,  (1900)  177  U.  S.  442 

L'Hote  v.  New  Orleans,  (1900)   177  U.  S.  587 

Waters-Pierce  Oil  Co.  v.  Texas,   (1900)    177  U.  S.  28 

Sully  v.  American  Nat.  Bank,  (1900)   178  U.  S.  289 

Wheeler  v.  New  York,  etc.,  R.  Co.,  (1900)   178  U.  S.  321 

Taylor  v.  Beckham,   (1900)   178  U.  S.  548 

American  Sugar  Refining  Co.  v.  Louisiana,  (1900)  179  U.  S.  89 

Contzen  v.  U.  S.,  (1900)    179  U.  S.  191 

New  York  v.  Barker,  (1900)  179  U.  S.  279 

Williams  v.  Fears,   (1900)   179  U.  S.  270 

Wisconsin,  etc.,  R.  Co.  v.  Jacobson,   (1900)   179  U.  S.  287 

Mason  v.  Missouri,  (1900)   179  U.  S.  328 

Chesapeake,  etc.,  R.  Co.  v.  Kentucky,  (1900)    179  U.  S.  388 

McDonald  v.  Massachusetts,    (1901)    180  U.  S.  311 

W.  W.  Cargill  Co.  V.  Minnesota,  ( 1901 )   180  U.  S.  452 

Rasmussen  v.  Idaho,   (1901)   181  U.  S.  198 

French  v.  Barber  Asphalt  Paving  Co.,  (1901)   181  U.  S.  324 

Wight  v.  Davidson,    (1901)    181  U.  S.  371 

Tonawanda  v.  Lyon,  (1901)  181  U.  S.  389 

Webster  v.  Fargo,   (1901)    181  U.  S.  394 

Cass  Farm  Co.  v.  Detroit,  (1901)  181  U.  S.  396 

Farrell  v.  West  Chicago  Park  Com'rs,  (1901)   181  U.  S.  404 

Detroit  v.  Parker,    (1901)    181   U.   S.   399 

Red  River  Valley  Nat.  Bank  v.  Craig,  ( 1901 )   181  U.  S.  548 

Mallett  V.  North  Carolina,   (1901)    181  U.  S.  589 

Simon  v.  Craft,   (1901)    182  U.  S.  427 

Cotting  v.  Kansas  Stock  Yards  Co.,  (1901)  183  U.  S.  79 

Storti  v.  Massachusetts,    (1901)    183  U.   S.   138 

Orr  v.  Oilman,    (1902)    183  U.   S.  278 

Florida  Cent.,  etc.,  R.  Co.  v.  Reynolds,  (1902)   183  U.  S.  471 

Nutting  v.  Massachusetts,   (1902)    183  U.  S.  553 

McChord  v.  Louisville,  etc.,  R.  Co.,  (1902)   183  U.  S.  483 

Clark  v.  Titusville,  (1902)   184  U.  S.  329 

King  v.  Portland,    (1902)    184  U.  S.  61. 

Booth  v.  Illinois,    (1902)    184  U.  S.  425. 

Goodrich  v.  Detroit,  (1902)   184  U.  S.  432 

St.  Louis  Consol.  Coal  Co.  v.  Illinois,  (1902)   185  U.  S.  203 

Fidelity  Mut.  L.  Assoc.  v.  Mettler,  (1902)   185  U.  S.  308 


APPENDIX  285 


Travellers'  Ins.  Co.  v.  Connecticut,  (1902)  185  U.  S.  368 

Turpin  1?.  Lemon,    (1902)    187  U.  S.  51 

Reid  v.  Colorado,  (1902)    187  U.  S.  137 

Dreyer  v.  Illinois,  (1902)   187  U.  S.  71. 

Chadwick  v.  Kelley,  (1903)   187  U.  S.  540 

Otis  v.  Parker,  (1903)  187  U.  8.  606 

Billings  v.  Illinois,  (1903)   188  U.  S.  97 

Andrews  v.  Andrews,   (1903)   188  U.  S.  14 

Blackstone  v.  Miller,  (1903)   188  U.  S.  189 

Hooker  v.  Los  Angeles,   (1903)    188  U.  S.  315 

Louisville,  etc.,  Ferry  Co.  v.  Kentucky,   (1903)   188  U.  S.  385 

Williams  v.  Parker,   (1903)    188  U.  S.  491 

Reetz  v.  Michigan,    (1903)    188  U.  S.   505 

Kidd  17.  Alabama,    (1903)    188  U.  S.  730. 

Tarrance  v.  Florida,    (1903)    188  U.  S.  519 

Prout  v.  Starr,    (1903)    188  U.  S.  537 

Glidden  v.  Harrington,   (1903)   189  U.  S.  255 

Farmers',  etc.,  Ins.  Co.  v.  Dobney,  (1903)  189  U.  S.  301 

Brownfield  v.  South  Carolina,   (1903)   189  U.  S.  426 

Detroit,  etc.,  R.  Co.  v.  Osborn,   (1903)   189  U.  S.  383 

Giles  v.  Harris,    (1903)    189  U.  S.  486 

Howard  v.  Fleming,   (1903)    191  U.  S.  126 

Missouri  17.  Dockery,   (1903)    191  U.  S.  165 

Atkin  17.  Kansas,    (1903)    191  U.  S.  207 

Hibben  v.  Smith,  (1903)   191  U.  S.  310 

State  Board  of  Assessors  17.  Comptoir  Nat.  D'Escompte,   (1903) 

191  U.  S.  388 

Arbuckle  v.  Blackburn,  (1903)   191  U.  S.  405 

Cronin  v.  Adams,  (1904)   192  U.  S.  108. 

Stanislaus  County  17.  San  Joaquin,  etc.,  Canal,  etc.,  Co.,   (1904) 

192  U.  S.  201 

Rogers  v.  Alabama,   (1904)    192  U.  S.  226 

Buttfield  17.  Stranahan,    (1904)    192  U.  S.  470 

Adams  17.  New  York,  (1904)    192  U.  S.  585. 

Minneapolis,  etc.,  R.  Co.  v.  Minnesota,   (1904)    193  U.  S.  53 

Leigh  17.  Green,  (1904)   193  U.  S.  79 

Great    Southern    Fire    Proof   Hotel    Co.    V.    Jones,     (1904)     193 

U.  S.  532 

Newburyport  Water  Co.  v.  Newburyport,  (1904)  193  U.  S.  561 
Cincinnati  St.  R.  Co.  17.  Snell,   (1904)   193  U.  S.  30 
West  17.  Louisiana,  (1904)   194  U.  S.  258 
U.  S.  17.  Williams,   (1904)   194  U.  S.  279 
Shepard  17.  Barren,   (1904)   194  U.  S.  553 
Ohio  17.  Dollison,    (1904)    194  U.  S.  445 
Public  Clearing  House  v.  Coyne,  (1904)   194  U.  S.  497 
Missouri,  etc.,  R.  Co.  v.  May,   (1904)    194  U.  S.  267 


286  APPENDIX 


Field  v.  Barber  Asphalt  Paving  Co.,  (1904)   194  U.  S.  618 
Fischer  V.  St.  Louis,  (1904)  194  U.  S.  361 
Morris  V.  Hitchcock,   (1904)   194  U.  S.  384 
Aikens  v.  Wisconsin,   (1904)   195  U.  S.  194 
Seattle  v.  Kelleher,    (1904)    195  U.   S.  351 
Hodge  v.  Muscatine  County,  (1905)   196  U.  S.  276 
Cook  17.  Marshall  County,  (1905)  196  U.  S.  261 
Coulter  v.  Louisville,  etc.,  R.  Co.,  (1905)   196  U.  S.  599 


APPENDIX  B. 

List  of  cases  decided  by  the  United  States  Supreme  Court  on  the 
right  of  the  States  to  regulate  procedure,  arranged  in  the  order  of 
their  rendition. 

Edwards  v.  Elliott,  (1874)  21  Wall.   (U.  S.)  557 
Walker  v.  Sauvinet,  (1875)   92  U.  S.  90 
Kennard  v.  Louisiana,  (1875)  92  U.  S.  480 
Pearson  V.  Yewdall,  (1877)  95  U.  S.  294 
Pennoyer  v.  Neff,    (1877)    95  U.  S.  714 
Davidson  v.  New  Orleans,  (1877)  96  U.  S.  97 
Strauder  v.  West  Virginia,  (1879)   100  U.  S.  303 
Virginia  v.  Rives,   (1879)   100  U.  S.  313 
Ex  p.  Virginia,  (1879)   100  U.  S.  339 
Missouri  v.  Lewis,   (1879)    101  U.  S.  22 
Neal  v.  Delaware,   (1880)    103  U.  S.  370 
Hurtado  v.  California,    (1884)    110  U.  S.  516 
Ex  p.  Reggel,    (1885)    114  U.  S.  642 
Campbell  V.  Holt,   (1885)    115  U.  S.  620 
Arrowsmith  v.  Harmoning,   (1886)    118  U.  S.  194 
Hayes  v.  Missouri,   (1887)   120  U.  S.  68 
Church  v.  Kelsey,   (1887)    121  U.  S.  282 
Spies  v.  Illinois,   (1887)   123  U.  S.  131 
Powell  V.  Pennsylvania,    (1888)    127  U.  S.  685 
Mahon  v.  Justice,    (1888)    127  U.  S.  700 
Huling  v.  Kaw  Valley  R.,  etc.,  Co.,  (1889)  130  U.  S.  559 
Freeland  V.  Williams,   (1889)  131  U.  S.  405 
Cross  v.  North  Carolina,    (1889)    132  U.  S.   131 
Pennie  v.  Reis,   (1889)    132  U.  S.  464 
Eilenbecker  v.  District  Ct.,  (1890)  134  U.  S.  31 
Louisville,  etc.,  R.  Co.  v.  Woodson,  (1890)  134  U.  S.  623 
In  re  Kemmler,   (1890)  136  U.  S.  436 
York  v.  Texas,   (1890)   137  U.  S.  15 
Wheeler  v.  Jackson,    (1890)    137  U.  S.  245 
Holden  v.  Minnesota,   (1890)   137  U.  S.  483 
In  re  Converse,   (1891)    137  U.  S.  624 
Caldwell  v.  Texas,   (1891)    137  U.  S.  692 
Kauffman  v.  Wootters,   (1891)    138  U.  S.  285 
Leeper  v.  Texas,   (1891)    139  U.  S.  462 
In  re  Rahrer,   (1891)  140  U.  S.  554 

287 


238  APPENDIX 


McElvaine  v.  Brush,   (1891)    142  U.  S.  155 

Schwab  v.  Berggren,   (1892)    143  U.  S.  442 

Fielden  v.  Illinois,    (1892)    143  U.  S.  452 

O'Neil  v.  Vermont,    (1892)    144  U.  S.  323 

Brown  v.  Smart,    (1892)    145  U.  S.  455 

McNulty  v.  California,   (1893)    149  U.  S.  645 

Montana  Co.  v.  St.  Louis  Min.,  etc.,  Co.,  (1894)  152  U.  S.  160 

Duncan  v.  Missouri,  (1894)   152  U.  S.  377. 

Marchant  v.  Pennsylvania  R.  Co.,  (1894)   153  U.  S.  380 

McKane  v.  Durston,   (1894)    153  U.  S.  684 

Scott  v.  McNeal,   (1894)    154  U.  S.  34 

Pearce  v.  Texas,   (1894)    155  U.  S.  311. 

Bergemann  V.  Backer,  (1895)    157  U.  S.  655 

Central  Land  Co.  V.  Laidley,  (1895)    159  U.  S.  103 

Moore  v.  Missouri,    (1895)    159  U.  S.  673 

Iowa  Cent.  R.  Co.  v.  Iowa,  (1896)   160  U.  S.  389 

Gibson  v.  Mississippi,   (1896)   162  U.  S.  565. 

Lowe  17.  Kansas,  (1896)    163  U.  S.  81.. 

Allen  V.  Georgia,  (1897)   166  U.  S.  138 

Hodgson  v.  Vermont,   (1897)   168  U.  S.  262 

King  v.  Mullins,  (1898)  171  U.  S.  404. 

Central  L.  &  T.  Co.  v.  Campbell  Commission  Co.,    (1899)    173 

U.  S.  84 

Brown  v.  New  Jersey,  (1899)  175  U.  S.  172. 
Bolln  v.  Nebraska,  (1900)  176  U.  S.  83 
Roller  v.  Holly,  (1900)  176  U.  S.  398 
Maxwell  v.  Dow,  (1900)   176  U.  S.  581. 
Louisville,  etc.,  R.  Co.  v.  Schmidt,   (1900)'  177  U.  S.  230 
Saranac  Land,  etc.,  Co.  v.  Comptroller,   (1900)  177  U.  S.  318 
Carter  v.  Texas,    (1900)    177  U.  S.  442 
McDonald  v.  Massachusetts,   (1901)    180  U.  S.  311 
Mallett  v.  North  Carolina,   (1901)   181  U.  S.  589 
Nutting  t7.  Massachusetts,   (1902)    183  U.  S.  553 
Turpin  17.  Lemon,    (1902)    187  U.  S.  51 
Dreyer  17.  Illinois,    (1902)    187  U.  S.  71 
Hooker  v.  Los  Angeles,    (1903)    188  U.  S.  315 
Tarrance  V.   Florida,    (1903)    188   U.   S.    519 
Farmers',  etc.,  Ins.  Co.  v.  Dobney,   (1903)   189  U.  S.  301 
Brownfield  v.  South  Carolina,  (1903)   189  U.  S.  426 
Howard  v.  Fleming,    (1903)    191  U.  S.  126. 
Arbuckle  v.  Blackburn,   (1903)    191  U.  S.  405 
Rogers  v.  Alabama,    (1904)    192  U.  S.  226 
Adams  v.  New  York,  (1904)   192  U.  S.  585 
Leigh  v.  Green,   (1904)    193  U.  S.  79 
Great  Southern  Fire  Proof  Hotel  Co.  v.  Jones,  (1904)   193  U.  S. 

532 


APPENDIX  289 


Newburyport  Water  Co.  v.  Newbuiyport,  (1904)  193  U.  S.  561 
Cincinnati  St.  R.  Co.  v.  Snell,  (1904)  193  U.  S.  30 
West  v.  Louisiana,    (1904)    194  U.  S.  258 
Ohio  v.  Dollison,   (1904)   194  U.  S.  445 


APPENDIX  C. 

List  of  cases  decided  by  the  United  States  Supreme  Court  on 
the  power  of  the  States  to  control  and  regulate  the  business  of  cor- 
porations, arranged  in  the  order  of  their  rendition. 

Richmond,  etc.,  R.  Co.  v.  Richmond,  (1877)  96  U.  S.  521 

Missouri  Pac.  R.  Co.  v.  Humes,  (1885)   115  U.  S.  513 

Railroad  Commission  Cases,   (1886)    116  U.  S.  307 

Barron  V.  Burnside,   (1887)    121  U.  S.  186 

Pembina  Consol.  Silver  Min.,  etc.,  Co.  v.  Pennsylvania,   (1888) 

125  U.  S.  181 

Minneapolis,  etc.,  R.  Co.  v.  Beckwith,  (1889)   129  U.  S.  26 
Minneapolis  Eastern  R.  Co.  v.  Minnesota,  (1890)  134  U.  S.  467 
Home  Ins.  Co.  v.  New  York,  (1890)   134  U.  S.  594 
Cherokee  Nation  v.  Southern  Kansas  R.  Co.,   (1890)    135  U.  S. 

641 

Charlotte,  etc.,  R.  Co.  v.  Gibbes,  (1892)  142  U.  S.  386 
Budd  v.  New  York,   (1892)   143  U.  S.  517 
New  York,  etc.,  R.  Co.  v.  Bristol,  (1894)   151  U.  S.  556 
Montana  Co.  v.  St.  Louis  Min.  etc.,  Co.,  (1894)  152  U.  S.  160 
Brass  v.  North  Dakota,   (1894)    153  U.  S.  391 
Eagle  Ins.  Co.  v.  Ohio,  (1894)  153  U.  S.  446 
Reagan  v.  Farmers'  L.  &  T.  Co.,  (1894)   154  U.  S.  362 
Covington,    etc.,   Turnpike   Road   Co.   v.   Sandford,    (1896)    164 

U.  S.  578 

St.  Louis,  etc.,  R.  Co.  v.  Mathews,  (1897)   165  U.  S.  1 
Gulf,  etc.,  R.  Co.  v.  Ellis,  (1897)   165  U.  S.  150 
New  York,  etc.,  R.  Co.  v.  New  York,  (1897)   165  U.  S.  628 
Chicago,  etc.,  R.  Co.  v.  Chicago,   (1897)    166  U.  S.  226 
Gladson  v.  Minnesota,   (1897)    166  U.  S.  427 
Blake  v.  McClung,   (1898)   172  U.  S.  239 
Orient  Ins.  Co.  v.  Daggs,   (1899)    172  U.  S.  557 
St.  Louis,  etc.,  R.  Co.  v.  Paul,  (1899)   173  U.  S.  404 
Lake  Shore,  etc.,  R.  Co.  v.  Smith,   (1899)   173  U.  S.  684 
Tullis  v.  Lake  Erie,  etc.,  R.  Co.,    (1899)    175  U.  S.  348 
Clark  v.  Kansas  City,    (1900)    176  U.  S.  114 
Adirondack  R.  Co.  v.  New  York,    (1900)    176  U.  S.  335 
Waters-Pierce  Oil  Co.  v.  Texas,  (1900)  177  U.  S.  28 
Cotting  v.  Kansas  City  Stock  Yards  Co.,  (1901)   183  U.  S.  79 
McChord  v.  Louisville,  etc.,  R.  Co.,  (1902)   183  U.  S.  483 

290 


APPENDIX  291 


Prout  v.  Starr,  (1903)  188  U.  S.  537 

Detroit,  etc.,  R.  Co.  v.  Osborn,  (1903)   189  U.  S.  383. 

Stanislaus  County  v.  San  Joaquin,  etc.,  Canal,  etc.,  Co.,   (1904) 

192  U.  S.  201 

Minneapolis,  etc.,  R.  Co.  V.  Minnesota,  (1904)   193  U.  S.  53 
Missouri,  etc.,  R.  Co.  v.  May,   (1904)   194  U.  S.  267 
Field  v.  Barber  Asphalt  Paving  Co.,  (1904)  194  U.  S.  618 


APPENDIX  D. 

List  of  cases  decided  by  the  United  States  Supreme  Court  relative 
to  the  power  of  the  States  to  regulate  State  taxation,  condemnation, 
etc.,  arranged  in  the  order  of  their  rendition. 

Munn  v.  Illinois,  (1876)  94  U.  S.  113 

McMillen  v.  Anderson,  (1877)   95  U.  S.  37 

Kirtland  v.  Hotchkiss,    (1879)    100  U.  S.  491 

Kelly  v.  Pittsburgh,  (1881)   104  U.  S.  78 

Hagar  v.  Reclamation  Dist.  No.  108,  (1884)   111  U.  S.  701 

Provident  Sav.  Inst.  v.  Jersey  City,  (1885)   113  U.  S.  506 

Kentucky  Railroad  Tax  Cases,  (1885)   115  U.  S.  321 

Santa  Clara  County  v.  Southern  Pac.  R.  Co.,   (1886)   118  U.  S. 

394     . 

Philadelphia  F.  Assoc.  v.  New  York,   (1886)   119  U.  S.  110 
Sands  v.  Manistee  River  Imp.  Co.,  (1887)   123  U.  S.  288 
Redemption  Bank  v.  Boston,   (1888)    125  U.  S.  60 
Spencer  v.  Merchant,  (1888)    125  U.  S.  345 
Dow  v.  Beidelman,   (1888)    125  U.  S.  680 
California  v.  Central  Pac.  R.  Co.,  (1888)   127  U.  S.  40 
Nashville,  etc.,  R.  Co.  v.  Alabama,  (1888)   128  U.  S.  96 
Palmer  v.  McMahon,   (1890)    133  U.  S.  661 
Bell's  Gap  R.  Co.  v.  Pennsylvania,  (1890)   134  U.  S.  232 
Kaukauna  Water  Power  Co.  v.  Green  Bay,  etc.,  Canal  Co.,  (1891) 

142  U.  S.  254 

Pacific  Express  Co.  V.  Seibert,   (1892)    142  U.  S.  339 
Horn  Silver  Min.  Co.  v.  New  York,  (1892)   143  U.  S.  305 
Budd  1?.  New  York,   (1892)   143  U.  S.  517 
Columbus  Southern  R.  Co.  v.  Wright,   (1894)    151  U.  S.  470 
Pittsburgh,  etc.,  R.  Co.  v.  Backus,  (1894)  154  U.  S.  421 
Emert  v.  Missouri,   (1895)   156  U.  S.  296 
St.  Louis,  etc.,  R.  Co.  v.  Gill,  (1895)   156  U.  S.  649 
Winona,  etc.,  Land  Co.  v.  Minnesota,  (1895)   159  U.  S.  526 
Eldridge  v.  Trezevant,  (1896)   160  U.  S.  452 
Western  Union  Tel.  Co.  v.  Taggart,   (1896)   163  U.  S.  1 
Fallbrook  Irrigation  Dist.  v.  Bradley,  (1896)  164  U.  S.  112 
Missouri  Pac.  R.  Co.  v.  Nebraska,  (1896)   164  U.  S.  403 


292 


1APPENDIX  293 


Covington,   etc.,   Turnpike   Road    Co.   v.    Sandford,    (1896)    164 

U.  S.  578 

Adams  Express  Co.  v.  Ohio  State  Auditor,  (1897)  165  U.  S.  194 
Western  Union  Tel.  Co.  v.  Indiana,  (1897)   165  U.  S.  304 
Sentell  v.  New  Orleans,  etc.,  R.  Co.,  (1897)  166  U.  S.  698 
Henderson  Bridge  Co.  v.  Kentucky,  (1897)    166  U.  S.  150 
Merchants',  etc.,  Bank  v.  Pennsylvania,  (1897)  167  U.  S.  461 
McHenry  v.  Alford,  (1898)    168  U.  S.  651 
Wilson  v.  North  Carolina,   (1898)   169  U.  S.  586 
Savings,  etc.,  Soc.  v.  Multnomah  County,  (1898)   169  U.  S.  421 
Magoun  v.  Illinois  Trust,  etc.,  Bank,  (1898)   170  U.  S.  283 
Williams  V.  Eggleston,   (1898)    170  U.  S.  304 
New  York  v.  Roberts,    (1898)    171  U.  S.  658 
Meyer  v.  Richmond,  (1898)    172  U.  S.  83 
Blake  v.  McClung,    (1898)    172  U.  S.  239 
Norwood  v.  Baker,   (1898)   172  U.  S.  269 
Dewey  v.  Des  Moines,  (1899)   173  U.  S.  193  . 
Henderson  Bridge  Co.  v.  Henderson,  (1899)  173  U.  S.  592 
Weyerhaueser  v.  Minnesota,    (1900)    176  U.  S.  550 
Wheeler  v.  New  York,  etc.,  R.  Co.,  (1900)   178  U.  S.  321 
American  Sugar  Refining  Co.  v.  Louisiana,  (1900)  179  U.  S.  89 
Williams  v.  Fears,    (1900)    179  U.  S.  270 
New  York  v.  Barker,   (1900)   179  U.  S.  279 
Wisconsin,  etc.,  R.  Co.  v.  Jacobson,   (1900)    179  U.  S.  287 
French  v.  Barber  Asphalt  Paving  Co.,  ( 1901 )   181  U.  S.  324 
Wight  v.  Davidson,   (1901)    181  U.  S.  371 
Tonawanda  v.  Lyon,   (1901)    181  U.  S.  389 
Webster  V.  Fargo,   (1901)   181  U.  S.  394 
Cass  Farm  Co.  v.  Detroit,  (1901)  181  U.  S.  396 
Farrell  v.  West  Chicago  Park  Com'rs,  (1901)   181  U.  S.  404 
Detroit  v.  Parker,   ( 1901 )    181  U.  S.  399 
Red  River  Valley  Nat.  Bank  v.  Craig,   (1901)   181  U.  S.  548 
Orr  v.  Gilman,  (1902)  183  U.  S.  278 

Florida  Cent.,  etc.,  R.  Co.  v.  Reynolds,  (1902)  183  U.  S.  471 
Clark  v.  Titusville,  (1902)  184  U.  S.  329 
King  v.  Portland,    (1902)    184  U.  S.  61 
Goodrich  v.  Detroit,   (1902)    184  U.  S.  432 
Chadwick  v.  Kelley,  (1903)  187  U.  S.  540 
Blackstone  v.  Miller,   (1903)   188  U.  S.  189 
Billings  v.  Illinois,   (1903)   188  U.  S.  97 
Louisville,  etc.,  Ferry  Co.  v.  Kentucky,  (1903)  188  U.  S.  385 
Williams  v.  Parker,   (1903)    188  U.  S.  491 
Kidd  v.  Alabama,    (1903)    188  U.  S.   730 
Glidden  v,  Harrington,   (1903)   189  U.  S.  255 


294  APPENDIX 


Missouri  v.  Dockery,   (1903)    191  U.  S.  165 

Hibben  v.  Smith,  (1903)  191  U.  S.  310. 

State  Board  of  Assessors  v.  Comptoir  Nat.  D'Escompte,   (1903) 

191  U.  S.  388 

Shepard  v.  Barren,  (1904)  194  U.  S.  553.. 
Seattle  v.  Kelleher,  (1904)  195  U.  S.  351. 
Cook  v.  Marshall  County,   (1905)    196  U.  S.  261 
Coulter  v.  Louisville,  etc.,  R.  Co.,  (1905)  196  U.  S.  599 


TABLE  OF  CASES. 

ALPHABETICALLY  ARRANGED. 

(See  also  the  cases  from  the  United  States  Supreme  Court  chron- 
ologically arranged  in  Appendixes  A,  B,  C,  and  D.) 

PAGE 

Ableman  v.  Booth,  21  How.  506 25,  108,  125,  141,  148,  161 

Abrigo  v.  State,  29  Tex.  App.  149 2 

Adams  v.  New  York,  192  U.  S.  585 143,  144,  145 

Adams  Express  Co.  v.  Ohio  State  Auditor,  165  U.  S.  194 118 

Addyston  Pipe,  etc.,  Co.  v.  U.  S.,  175  U.  S.  211 118 

Adirondack  R.  Co.  v.  New  York,  176  U.  S.  335 132 

Aikens  v.  Wisconsin,  195  U.  S.  194 214 

Alabama  State  Bank  v.  Dalton,  9  How.  522 139 

Alberty  V.  U.  S.,  162  U.  S.  499 53 

Allen  v.  Baltimore,  etc.,  R.  Co.,  114  U.  S.  311 130 

Allen  v.  Pullman's  Palace  Car  Co.,  191  U.  S.  171 119 

Allgeyer  v.  Louisiana,  165  U.  S.  579 209,  214 

Almy  v.  California,  24  How.  169 132 

American  Ins.  Co.  v.  356  Bales  Cotton,  1  Pet.  511 

22,  23,  25,  47,  122,  124,  135 

American  Pub.  Co.  v.  Fisher,  166  U.  S.  464 147 

American  Steel,  etc.,  Co.  v.  Speed,  192  U.  S.  500 133 

Ames  V.  Kansas,  111  U.  S.  449 121 

Amy  v.  Shelby  County  Taxing  Dist.,  114  U.  S.  387 130 

Amy  v.  Smith,  1  Litt.  (Ky.)  332 •.  3 

Anderson  v.  Dunn,  6  Wheat.  204 113,  148 

Anderson  v.  U.  S.,  171  U.  S.  604 118 

Andres  v.  Arnold,  77  Mich.  87 57 

Andrews  v.  Andrews,  188  U.  S.  14 137,  140,  148,  204,  240 

Andrews  v.  Swartz,  156  U.  S.  272 137 

Anglo  American  Provision  Co.  v.  Davis  Provision  Co.,  191  U.  S. 

373  140,  168 

Anonymous,  4  N.  Y.  Leg.  Obs.  98,  1  Fed.  Gas.  No.  465 60 

Antoni  v.  Greenhow,  107  U.  S.  769 130 

Arbuckle  V.  Blackburn,  191  U.  S.  405 138 

Arkansas  Valley  Land,  etc.,  Co.  v.  Mann,  130  U.  S.  69 146 

Armstrong  v.  Treasurer,  16  Pet.  281 128 

Asher  v.  Texas,  128  U.  S.  129 117 

Ashley  v.  Ryan,  153  U.  S.  436 117 

295 


296  TABLE  OF  CASES 


PAGE 

Aspinwall  v.  Daviess  County,  22  How.  364 128 

Atkin  v.  Kansas,  191  U.  S.  207 214 

Atlantic,  etc.,  R.  Co.  v.  Georgia,  98  U.  S.  359 130 

Augusta  Bank  v.  Earle,  13  Pet.  519 135,  139,  140,  168 

Backus  v.  Fort  St.  Union  Depot  Co.,  169  U.  S.  557 137,  214 

Baird  v.  Byrne,  3  Wall.  Jr.  1 59 

Baker  v.  Grice,  169  U.  S.  284 137 

Baker  v.  Kilgore,  145  U.  S.  487 131 

Baldwin  v.  Franks,  120  U.  S.  678 201,  258 

Baltimore  v.  Baltimore  Trust,  etc,,  Co.,  166  U.  S.  673 131 

Baltimore,  etc.,  R.  Co.  v.  Maryland,  21  Wall.  456 116 

Baltimore,  etc.,  R.  Co.  v.  Nesbit,  10  How.  395 128 

Baltzer  v.  North  Carolina,  161  U.  S.  240 131 

Bankers'  Mut.   Casualty  Co.  v.  Minneapolis,  etc.,  R.  Co.,   192 

U.   S.   371 138 

Bank  of  Commerce  v.  Tennessee,  161  U.  S.  134 131 

Banks  V.  Walker,  3  Barb.  Ch.  438 59 

Barbier  v.  Connolly,  113  U.  S.  27 211,  243 

Barings  v.  Dabney,  19  Wall.  1 129 

Barnitz  v.  Beverly,  163  U.  S.  118 131 

Barren  v.  Baltimore,  7  Pet.  243 127,  144,  146 

Barron  v.  Burnside,  121  U.  S.  186 136,  169,  209 

Bartemeyer  v.  Iowa,  18  Wall.  129 116,  212 

Bauman  v.  Ross,  167  U.  S.  548 145 

Beale  v.  New  Mexico,  16  Wall.    (U.  S.)    535 22,  25 

Bedford  v.  Eastern  Bldg.,  etc.,  Assoc.,  181  U.  S.  227 132 

Bedford  v.  U.  S.,  192  U.  S.  217 145 

Beers  v.  Arkansas,  20  How.  527 128 

Beers  v.  Haughton,  9  Pet.   329 119,  128 

Belcher  v.  Farren,  89  Cal.  73 60,  265 

Bell's  Gap  R.  Co.  v.  Pennsylvania,  134  U.  S.  237 248 

Benner  V.  Porter,  9  How.  235 121 

Benson  v.  U.  S.,  146  U.  S.  325 124 

Berry  v.  Hull,  6  N.  Mex.  643 57,  58 

Berthemy's  Case,   ( 1866 )    12  Op.  Atty.-Gen.  7 65 

Bier  v.  McGehee,  148  U.  S.  137 131 

Bigelow  v.  Forrest,  9  Wall.  339 139 

Binghamton  Bridge,  3  Wall.  451 129 

Blackstone  v.  Miller,  188  U.  S.   189 132,  140 

Blake  v.  McClung,  172  U.  S.  239 140,  169,  209 

Blanck  v.   Pausch,    113   111.   60 3 

Blight  v.  Rochester,  7  Wheat.  546 ' 60 

Blount  v.  Walker,  134  U.  S.  607 139 

Blount  v.  Windley,  95   U.   S.    173 129 

Blyew  v.  U.  S.,  13  Wall.  581 136 


TABLE  OF  CASES  297 


PAGE 

Board  of  Public  Works  v.  Columbia  College,  17  Wall.  521 139 

Bonaparte  v.  Appeal  Tax  Ct.,  104  U.  S.  592 139 

Booth  v.  Illinois,  184  U.  S.  425 245 

Borer  v.  Chapman,  119  U.  S.  587 139 

Boston  Beer  Co.  v.  Massachusetts,  97  U.  S.  25 116,  129,  212 

Bowman  v.  Chicago,  etc.,  R.  Co.,  125  U.  S.  465 117,  148,  212 

Boyd  v.  Nebraska,  143  U.  S.  161 264 

Boyd  v.  Thayer,   143  U.  S.   135 22,  53,     60 

Boyd  v.  U.  S.,  116  U.  S.  616 143,  144 

Boyle  v.  Zacharie,  6  Pet.  348 119 

Bradfield  v.  Roberts,  175  U.  S.  291 142,  188 

Bradley  v.  People,  4  Wall.  459 114 

Bradwell  v.  State,   16  Wall.  130 140,  214,  215 

Brass  v.  North  Dakota,  153  U.  S.  391 117 

Breedlove  v.  Nicolet,  7  Pet.  413 135 

Brennan  v.  Titusville,  153  U.  S.  289 117,  213 

Brimmer  v.  Rebman,  138  U.  S.  78 117,  213 

Briscoe  v.  Kentucky  Com.  Bank,  11  Pet.  257 120,  127 

Broadis  v.  Broadis,  86  Fed.  Rep.  951 63 

Bronson  v.  Kinzie,  1  How.  311 128 

Brooks  17.  Missouri,  124  U.  S.  394 146 

Brown  v.  Houston,  114  U.  S.  622 116,  132,  139 

Brown  v.  Keene,  8  Pet.  112 135 

Brown  v.  Maryland,  12  Wheat.  419 115,  132,  133 

Brown  v.  Smart,  145  U.  S.  457 120 

Brown  v.  U.  S.,  8  Cranch  110 122 

Brown  v.  Walker,  161  U.   S.  591    145 

Brownfield  v.  South  Carolina,  189  U.  S.  426 241 

Bryan  v.  Board  of  Education,  151  U.  S.  639 131 

Buckner  v.  Finley,  2  Pet.  586 148 

Burrov-Giles  Lith  Co.  v.  Sarony,  111  U.  S.  53 121 

Burr's  Trial,  4  Cranch,  469 75,  138 

Burton  v.  Burton,  1  Keyes  (N.  Y. )  359 65 

Bush  v.  Kentucky,  107  U.  S.  110 136 

Butchers'  Union  Slaughter-house,  etc.,  Co.  V.  Crescent  City  Live- 
stock Landing,  etc.,  Co.,   Ill  U.  S.  746 130 

Butler  17.  Pennsylvania,  10  How.  402 128 

Butterworth,  Applicant,  1   Woodb.  &  M.  323 57 

Buttfield  17.  Stranahan,  192  U.  S.  470 119,  145 

Butz  v.  Muscatine,  8  Wall.  575 129 

Byrne  v.  Missouri,  8   Pet.  40 127 

Cairo,  etc.,  R.  Co.  v.  Hecht,  95  U.  S.  168 129 

Calder  V.   Bull,   3  Dall.   386 127,  163 

Caldwell  v.  Carrington,  9  Pet.  86 139 

California  v.  Central  Pac.  R.  Co.,  127  U.  S.  1 117,  208 


298  TABLE  OF  CASES 


PAGE 

Callan  v.  Wilson,  127  U.  S.  540 25,  144,  146 

Calvin's  Case,  7  Coke  1 , 68 

Campbell  v.  Wade,  132  U.  S.  34 130 

Canada  Southern  R.  Co.  v.  Gebhard,  109  U.  S.  527 130 

Cannon  v.  New  Orleans,  20  Wall.  577 133 

Capital  City  Dairy  Co.  v.  Ohio,  183  U.  S.  238 119,  145 

Cardwell  v.  American  Bridge  Co.,  113  U.  S.  205 116 

Carlisle  v.  U.  S.,  16  Wall.  147 68,  69,  89,  90,  268 

Carpenter  v.  Pennsylvania,  17  How.  456 125,  128,  165 

Carpenter  v.  Strange,  141  U.  S.  87 140 

Carroll  County  v.  Smith,  111  U.  S.  556 136,  141 

Carter  v.  Texas,  177  U.  S.  442 137,  206,  208 

Cary  v.  Curtis,  3  How.  236 135 

Case  of  Armes,  Popham  121,  Foster  208 84 

Cates  v.  Allen,  149  U.  S.  451 136,  147 

Central  Land  Co.  v.  Laidley,  159  U.  S.  103 137 

Chadwick  v.  Kelley,  187  U.  S.  540 140,  201 

Chappedelaine  v.  Dechenaux,  4  Cranch  306 135 

Chappell  v.  U.  S.,  160  U.  S.  499 124 

Charge  to  Grand  Jury,  4  Blatchf.  518,  30  Fed.  Cas.  No.  18,270 

77,  82,  85 

Charge  to  Grand  Jury,  1  Bond  609,  30  Fed.  Cas.  No.  18,272 

77,  84,  88,  89,  90,  138 

Charge  to  Grand  Jury,  2  Curt.  630,  30  Fed.  Cas.  No.  18,269 

77,  78 

Charge  to  Grand  Jury,  1  Sprague  602 68,  79,  82,  85,  87 

Charge  to  Grand  Jury,  1  Story  614 80,  86 

Charles  River  Bridge  v.  Warren  Bridge,  11  Pet.  420 128,  165,  166 

Charlotte,  etc.,  R.  Co.  v.  Gibbes,  142  U.  S.  391 241 

Chemung  Canal  Bank  v.  Lowery,  93  U.  S.  72 140,  172 

Cherokee  Nation  v.  Georgia,  5  Pet.  1 135 

Cherokee  Nation  v.  Southern  Kansas  R.  Co.,  135  U.  S.  641 117 

Chesapeake,  etc.,  R.  Co.  v.  Kentucky,  179  U.  S.  388 118,  194 

Chicago,  etc.,  R.  Co.  v.  Chicago,  166  U.  S.  226 137,  147,  201,  206 

Chicago,  etc.,  R.  Co.  v.  Fuller,  17  Wall.  560 116 

Chicago,  etc.,  R.  Co.  v.  Minnesota,  134  U.  S.  418 208 

Chicago,  etc.,  R.  Co.  v.  Minnesota,  134  U.  S.  467 130 

Chicago,  etc.,  R.  Co.  v.  Nebraska,  170  U.  S.  57 131 

Chicago,  etc.,  R.  Co.  v.  Solan,  169  U.  S.  133 118 

Chicago,  etc.,  R.  Co.  v.  Strum,  174  U.  S.  710 140 

Chicago,  etc.,  R.  Co.  v.  Whitton,  13  Wall.  270 136 

Chicago,  etc.,  R.  Co.  V.  Wiggins  Ferry  Co.,  108  U.  S.  18 136 

Chicago,  etc.,  R.  Co.  v.  Wiggins  Ferry  Co.,  119  U.  S.  615 139 

Chichester  v.  Philips,  T.  Raym.  404 84 

Chinese  Exclusion  Case,  130  U.  S.  581 108,  122,  267 


TABLE  OF  CASES  299 


PAGE 

Chirac  v.  Chirac,  2   Wheat.   269 54 

Chisholm  v.  Georgia,  2  Dall.  419 121,  134,  135,  148 

Christ  Church  v.  Philadelphia  County,  24  How.  300 128 

Christmas  v.  Russell,  5  Wall.  290 139 

Church   v.   Kelsey,    121    U.    S.   282 130,  148 

Church  of  Jesus  Christ  v.  U.  S.,  136  U.  S.  1 25,  122,  142,  188 

Chy  Lung  v.  Freeman,  92  U.  S.  275 116 

Cincinnati,  etc.,  Packet   Co.  v.  Catlettsburg,   105   U.   S.   559 . . 

127,  133 

Citizens'  Bank  v.  Parker,  192  U.  S.  73 132 

Citizenship,   ( 1862)    10  Op.  Atty.-Gen.  382 21 

Citizenship,   ( 1874)   14  Op.  Atty.-Gen.  402 65 

Citizenship,  etc.,  21  Fed.  Rep.  905 51 

Citizenship  —  Levy's  Case,  (1874)    14  Op.  Atty.-Gen.  509 56,     59 

Citizens'  Sav.  Bank  v.  Owensboro,  173  U.  S.  636 132 

City  R.  Co.  v.  Citizens'  St.  R.  Co.,  166  U.  S.  557 131,  137 

Civil  Rights  Case,  109  U.  S.  3 29,  108,  192,  193,  199,  202,  205 

Claflin  v.  Houseman,  93  U.  S.  130 136,  148 

Clarke  v.  Clarke,  178  U.  S.  186 140 

Clay  County  v.  Savings  Soc.,  104  U.  S.  579 130 

Clinton  v.  Englebrecht,   13   Wall.  434 22,     25 

Clinton  Bridge,  10  Wall.  454 116 

Close  17.  Greenwood  Cemetery,  107  U.  S.  466 130 

Coe  v.  Errol,  116  U.  S.  517 116,  133 

Cohen  v.  Virginia,  6  Wheat.  264 108,  121,  124,  135,  148 

Cole  v.  Cunningham,  133  U.  S.  107 139,  140 

Collector  v.  Day,  11   Wall.   113 114,  148 

Collet   v.    Collet,   2   Dall.   294 54 

Collins  v.  New  Hampshire,  171  U.  S.  30 118 

Colson  v.  Lewis,  2  Wheat.  377 135 

Columbia  Bank  v.  Okely,  4  Wheat.  235 146 

Com.  v.  Blanding,  3  Pick.    (Mass.)    314 190 

Com.  17.  Trowles,  5  Leigh    ( Va.)    743 60 

Commercial,  etc.,  Bank  v.  Slocum,  14  Pet.  60 135 

Confiscation  Cases,  20  Wall.  92 76 

Confiscation  Cases,  1   Woods  221 76 

Connecticut  Mut.  L.  Ins.  Co.  v.  Spratley,  172  U.  S.  602 132 

Conner  1?.  Elliott,  18  How.  591 140,  171,  172 

Contzen  v.  U.   S.,   179  U.  S.  191 58,  60,  266 

Conway  V.  Taylor,  1  Black  603 115 

Cook  17.  Moffat,   5  How.   295 119,  128 

Cook  v.  Pennsylvania,  97   U.  S.   566 1 16,  132 

Cook  v.  U.   S.,   138  U.   S.   157 126,  146 

Cook  County  17.  Calumet,  etc.,  Canal,  etc.,  Co.,  138  U.  S.  635 136 

Cooke  v.  Avery,  147  U.  S.  375 136 


300  TABLE  OF  CASES 


PAGE 

Cooley  v.  Board  of  Wardens,  12  How.  299 

114,   115,   126,   132,   133,  157 

Cooper  v.  Roberts,   18  How.   177 98 

Cooper  Mfg.  Co.  v.  Ferguson,  113  U.  S.  727 116 

Cope  v.  Cope,  137  U.  S.  682 25 

Corfield  v.  Coryell,  4  Wash.  371 99 

Cornell  v.  Coyne,  192  U.  S.  418 126,  133 

Corson  v.  Maryland,  120  U.  S.  502 117,  171 

Cotting  v.  Kansas  City  Stock  Yards   Co.,  183  U.  S.  79 209 

Coughran  V.  Bigelow,  164  U.  S.  301 147 

Counselman  v.  Hitchcock,  142  U.  S.  547 145 

Covington  v.  Kentucky,  173  U.  S.  231 132,  137 

Covington,  etc.,  Bridge  Co.  V.  Kentucky,  154  U.  S.  204 118 

Covington,  etc.,  Turnpike  Road  Co.  v.  Sandford,  164  U.  S.  578 

131,    208,    241,  242 

Coxe  v.  M'Clenachan,  3  Ball.  478 113 

Craig  v.  Missouri,  4  Pet.  410 127 

Crandall  V.  Nevada,  6  Wall.  35 115,  122,  123,   124,  132,  140 

Crawford  v.  Branch  Bank,  7  How.  279 128 

Crenshaw  v.  U.  S.,  134  U.  S.  99 130 

Croesus   Min.,    etc.,   Co.   v.    Colorado   Land,    etc.,   Co.,    19    Fed. 

Rep.    78 56 

Cronin  v.  Adams,   192  U.  S.   108 212 

Cross  v.  Harrison,  16  How.    (U.  S.)    164 22,     25 

Grossman  v.  Lurman,   192  U.  S.   189 119 

Crowley  v.  Christensen,  137  U.  S.  91 212 

Crutcher  v.  Kentucky,  141  U.  S.  47 117 

Cumjning  v.  Board  of  Education,  175  U.  S.  528 246 

Cummings  v.  Chicago,  188  U.  S.  410 119,  137 

Cummings  v.  Missouri,  4  Wall.  277 125,  129,  164 

Curran  v.  Arkansas,  15  How.  304 128 

Darby  V.  Mayer,   10   Wheat.   465 139 

D'Arcy  v.  Ketchum,  11  How.  165 139 

Darrington  v.  Branch  Bank,  13  How.   12 127 

Dartmouth  College  V.  Woodward,  4  Wheat.  518 128 

Davidson  v.  New  Orleans,  96  U.  S.  97 144,  250,  251 

Davis  v.  Beason,  133  U.  S.  333 25,  142,  186,  188,  245 

Davis  v.  Gray,  16  Wall.  203 136 

Davis  v.  Massachusetts,   167  U.  S.  44 244 

Davis  v.  Packard,  6  Pet.  41,  7  Pet.  276 135 

Davis  v.  Packard,  8  Pet.  312 135 

Day  v.   Micou,    18   Wall.    156 139 

Dean,  Petitioner,  83  Me.  489 56 

Delaware  Railroad  Tax,  18  Wall.  206 116 

De  Lima  v.  Bidwell,  182  U.  S.   1 48,  115,  126 


TABLE  OF  CASES  3Q1 


PAGE 

Denney  v.  Bennett,  128  U.  S.  489 130 

Dent  v.  West  Virginia,  129  U.  S.  114 215 

Deposit  Bank  v.  Frankfort,  191  U.  S.  499 132,  138 

De  Treville  v.  Smalls,  98  U.  S.  517 112 

Detroit,  etc.,  R.  Co.  v.  Osborn,  189  U.  S.  383 138 

Dewey  v.  Des  Moines,  173  U.  S.  193 137,  208 

Diamond  Glue  Co.  v.  U.  S.  Glue  Co.,  187  U.  S.  611 119,  132,  140 

Dobbins  v.  Erie  County,  16  Pet.  435 114 

Dodge  v.  Woolsey,  18  How.  331 128 

Dooley  v.  U.  S.,  182  U.  S.  222 25,  115,  137 

Dooley  v .  U.  S.,  183  U.  S.  151 126,  133,  151 

Dorsey  v.  Brigham,  177  111.  250,  69  Am.  St.  Rep.  232 4,  63 

Douglas  v.  Kentucky,  168  U.  S.  488 131,  137 

Downes  v.  Bidwell,  182  U.  S.  244 25,  48 

Downham  v.  Alexandria,  10  Wall.  173 116,  140 

Doyle  v.  Continental  Ins.  Co.,  94  U.  S.  535 136,  169 

Dred  Scott  v.  Sandford,  19  How.  (U.  S.)  393 

4,  18,  21,  23,  25,  27,  30,  47,  112,  119,  120,  140,  141,  197 

Drehman  v.  Stifle,  8  Wall.  595 125,  129 

Dreyer  v.  Illinois,  187  U.  S.  71 145 

Dryden  v.  Swinburne,  20  W.  Va.  89 60 

Dubuque,  etc.,  R.  Co.  v.  Richmond,  19  Wall.  584 116 

Ducat  V.  Chicago,  10  Wall.  410 168 

Duncan  v.  Missouri,  152  U.  S.  377 131 

Dunphy  v.  Kleinsmith,  11  Wall.  610 124 

Durousseau  v.  U.  S.,  6  Cranch  307 135 

Dynes  v.  Hoover,  20  How.  65 123,  144 

Eagle  Ins.  Co.  v.  Ohio,  153  U.  S.  446 131 

Eastern  Bldg.,  etc.,  Assoc.  v.  Welling,  181  U.  S.  47 137 

East  Saginaw  Salt  Mfg.  Co.  v.  East  Saginaw,  13  Wall.  373 129 

Edwards  v.  Elliott,  21  Wall.  532 146,  236 

Edwards  v.  Kearzey,  96  U.  S.  595 129,  165 

Effinger  v.  Kenney,  115  U.  S.  566 130 

Eilenbecker  v.  Plymouth  County,  134  U.  S.  31 

142,  143,  145,  146,  147,  212,  235 

Eldridge  v.  Trezevant,  160  U.  S.  452 172 

Elk  V.  Wilkins,  112  U.  S.  94 32,  52,  197,  264,  265 

Ellis  v.  Davis,  109  U.  S.  485 136 

Emert  V.  Missouri,  156  U.  S.  296 118,  214 

Escanaba,  etc.,  Transp.  Co.  v.  Chicago,  107  U.  S.  678 116 

Essex  Public  Road  Board  v.  Skinkle,  140  U.  S.  334 131 

Expatriation  —  Foreign  Domicile  Citizenship,  14  Op.  Atty.- 

Gen.  295 265 

Ex  p.  Bain,  121  U.  S.  1 144 

Ex  p.  Bollman,  4  Cranch  75 76,  79,  80,  86,  125,  135,  138 


302  TABLE  OF  CASES 


PAGE 

Ex  p.  Boyd,  105  U.  S.  647 136 

Ex  p.  Chin  King,  35  Fed.  Rep.  354 51 

Ex  p.  Cregg,  2  Curt.  98 56 

Ex  p.  Dorr,  3  How.  103 125 

Ex  p.  Garland,  4  Wall.  333 125,  128,  142,  164 

Ex  p.  Jackson,  96  U.   S.  727 120 

Ex  p.  Karstendick,  93  U.  S.  396 125 

Ex  p.  Kearney,  7  Wheat.  38 125,  135,  146 

Ex  p.  Knowles,  5  Cal.  300 56 

Ex  p.  Lange,   18  Wall.   163 77,   125,  139,  144 

Ex  p.  McCardle,  7  Wall.  506 125 

Ex    p.  McKenzie,  51   S.  Car.  244 56 

Ex  p.  McNeil,    13  Wall.  236 116,  157 

Ex  p.  Milburn,   9  Pet.   704 125 

Ex  p.  Milligan,  4  Wall.  2 125,  136,   143,  144,  146,  163 

Ex  p.  Parks,  93  U.   S.   18 125 

Ex  p.  Quarrier,  2  W.  Va.  569 80,     81 

Ex  p.  Reggel,  114  U.  S.  642 141,  175,  238 

Ex  p.   Reynolds,   5   Dill.   394 52,     69 

Ex  p.   Sauer,   81    Fed.   Rep.    355 58,     59 

Ex  p.  Seibold,  100  U.   S.  371 108,  134 

Ex  p.   Smith,   8   Blackf.   395 57 

Ex  p.  Thompson,  3  Hawks.    (N.  Car.)    362 69 

Ex  p.  Tweedy,  22  Fed.  Rep.  84 56 

Ex  p.  Vallandigham,   1  Wall.  243 121,   125,    136,  189 

Ex  p.  Virginia,  100  U.  S.  339 29,  125,  199,  204,  205,  208 

Ex  p.  Wall,  107  U.  S.  265 144 

Ex  p.  Watkins,  3  Pet.   193 125 

Ex  p.  Wilson,  114  U.  S.  417 144 

Ex  p.  Yarbrough,  110  U.  S.  651 Ill,  216,  217,  259 

Ex  p.  Yerger,  8  Wall.  85 125,  136,  160,  162 

Fairbank  v.  U.  S.,  181  U.  S.  292 126 

Fallbrook  Irrigation  Dist.  v.  Bradley,  164  U.  S.  112 137 

Fargo  V.  Michigan,  121  U.  S.  230 117 

Farmers',  etc.,  Bank  v.  Smith,  6  Wheat.  131 119,  128 

Farrell  v.   U.   S.,   110  Fed.   Rep.   942 52 

Farrington  v.  Tennessee,  95  U.  S.  679 129 

Felsenheld  v.  U.  S.,  186  U.  S.  126 115 

Fenne  v.  Holme,  21  How.  481 136 

Ficklen  v.  Shelby  County  Taxing  Dist.,  145  U.  S.  1 117 

Fidelity,  etc.,  Ins.  Co.  v.  U.  S.,  187  U.  S.  315 146,  147 

Field  v.  Barber  Asphalt  Paving  Co.,  194  U.  S.  621 243 

Field  v.  Clark,  143  U.  S.  649 113,  114,  115,  117,  134 

Finney  v.  Guy,  189  U.  S.  335 140 

Fisk  17.  Jefferson  Police  Jury,  166  U.  S.  131 130 


TABLE  OF  OASES  3Q3 


PAGE 

Fister  v.  Davenport,  22  How.  244 7.15 

Fitts  v.  McGehee,  172  U.  S.  516 137 

Fleming  v.  Page,  9  How.  603 70 

Fletcher  v.  Peck,  6  Cranch  87 125,  128,  164 

Folsom  v.  Township  Ninety-Six,  159  U.  S.  611 137 

Fong  Yue  Ting  v.  U.  S.,  149  U.  S.  698 

143,   145,   146,   147,  264,   266,  267 

Forsyth  v.  Hammond,   166  U.   S.   506 137,  148 

Foster  v.  Kansas,  112  U.  S.  201 116,  212 

Foster  v.  New  Orleans,  94  U.  S.  246 116 

Fourteen  Diamond  Rings  v.  U.  S.,  183  U.  S.  176 114,  115,  126 

Fox  v.  Ohio,  5  How.  410 120,   144,  146 

Franklin  v.  U.   S.,  1  Colo.  38 48 

Franklin  Branch  Bank  v.  Ohio,  1  Black  474 128 

Freeland  v.  Williams,  131  U.  S.  405 130 

French  17.  Barber  Asphalt  Paving  Co.,  181  U.  S.  324 145 

Fretz  v.  Bull,  12  How.  466 135 

Fritts  v.  Palmer,  132  U.  S.  282 117 

Ft.  Leavenworth  R.  Co.  v.  Lowe,  114  U.  S.  525 124,  125 

Furman  V.  Nicol,  8  Wall.  44 129 

Gaines  v.  Fuentes,  92  U.  S.  10 136 

Gagnon  v.  U.  S.,  38  Ct.  Cl.  10 60 

Galveston,  etc.,  R.  Co.  v.  Texas,  170  U.  S.,  226 131 

Gardiner  v.  Miller,  47  Cal.  575 48 

Garrison  v.  New  York,  21  Wall.  196 129 

Gassies  V.  Ballon,  6  Pet.  761 23,  119,  140,  168,  196 

Geofroy  v.  Riggs,  133  U.  S.,  258 124 

Georgia   V.    Stanton,    6   Wall.    50 136 

German  Sav.,  etc.,  Soc.  v.  Dormitzer,  192  U.  S.  125 140 

Gibbons  v.  District  of  Columbia,   116  U.  S.  404 112,  124 

Gibbons  v.  Ogden,  9  Wheat.   1 115,   132,   155,  156 

Gibson  v.  Chouteau,   13  Wall.    (U.  S.)    92 22,     25 

Gibson  v.  Mississippi,  162  U.  S.  565 131,  216,  219,  238 

Giles  v.  Harris,  189  U.  S.  486 185,  216,  220 

Gilfillan  v.  Union  Canal  Co.,  109  U.  S.  401 130 

Gilman  v.  Lockwood,  4  Wall.  410 120 

Gilman  v.  Philadelphia,  3  Wall.  713 1 15,  157 

Gilman  v.  Sheboygan,  2  Black  510 129,  144 

Giozza  v.  Tiernan,   148  U.  S.  657 211,  212 

Gladhill,   Petitioner,   8  Met.    (Mass. )    168 56 

Gladson  v.  Minnesota,  166  U.  S.  427 118,  120 

Glass  v.  The  Sloop  Betsey,  3  Dall.  6 135 

Glenn  v.  Garth,  147  U.  S.  360 140 

Gloucester  Ferry  Co.  v.  Pennsylvania,  114  U.  S.  196 116 

Golden  v .  Prince,  3  Wash.  313 54 


304  TABLE  OF  CASES 


PAGE 

Gordon  v.  Appeal  Tax  Ct.,  3  How.  133 128 

Gordon's  Case,  1  East  P.  C.  71 88 

Gougar  v.  Timberlake,  148  Ind.  41,  62  Am.  St.  Rep.  489 4 

Grand  Lodge,  etc.,  v.  New  Orleans,  166  U.  S.  143 131 

Grant  V.  Raymond,  6  Pet.  218 121 

Gray  v.  Connecticut,  159  U.  S.  74 212,  215 

Green  v.  Biddle,  8  Wheat.  1 128,  133 

Green  v.  Mills,  69  Fed.  Rep.  852,  159  U.  S.  651 185,  216 

Green  v.  Salas,  31  Fed.  Rep.  106 59,  264,  265 

Green  v.  Van  Buskirk,  7  Wall.  139 139 

Green  Bay,  etc.,  Canal  Co.  v.  Patten  Paper  Co.,  172  U.  S.  58 

118,  137 

Greenwood  v.  Union  Freight  R.  Co.,  105  U.  S.  13 130 

Greer  v.  Connecticut,  161  U.  S.  519 118,  159,  173 

Gross  v.  U.  S.  Mortgage  Co.,  108  U.  S.  477 136 

Gulf,  etc.,  R.  Co.  v.  Ellis,  165  U.  S.  150 208,  241,  242 

Gulf,  etc.,  R.  Co.  v.  Hefley,  158  U.  S.  98 118 

Gundling  v.  Chicago,  177  U.  S.  183 213 

Gunn  v.  Barry,  15  Wall.  610 129 

Gut  v.  Minnesota,  9  Wall.  35 128 

Guy  v.  Baltimore,  100  U.  S.  434 116,  170 

Hall  v.  De  Cuir,  95  U.  S.  485 52,  116,  198 

Hall  v.  Wisconsin,  103  U.  S.  5 130 

Hamilton  v.  Dillin,  21  Wall.   73 122 

Hamilton  Gas  Light,  etc.,  Co.  v.  Hamilton,  146  U.  S.  258 131 

Hampton  v.  M'Connel,  3  Wheat.  234 139 

Hanauer  v.  Doane,  12  Wall.  342 89,  90 

Hanauer  v.  Woodruff,  15  Wall.  439 70 

Hancock  Mut.  L.  Ins.  Co.  v.  Warren,  181  U.  S.  73 148 

Hancock  Nat.  Bank  V.  Farnum,   176  U.  S.  640 137,  140 

Hanford  v.  Davies,  163  U.  S.  273 131 

Hanley  v.  Donoghue,   1 16  U.  S.  1 139 

Hannibal,  etc.,  R.  Co.  v.  Husen,  95  U.  S.  465 116 

Hanover  Nat.  Bank  v.  Moyses,  186  U.  S.  181 119,  121,  132,  145 

Hans  V.  Louisiana,  134  U.  S.  1 130,  136 

Harman  v.  Chicago,  147  U.  S.  396 117 

Hawaii  v.  Mankichi,  190  U.  S.   197 145,  146 

Hawker  v.  New  York,  170  U.  S.  189 128 

Hawthorne  V.  Calef,  2  Wall.  10 129 

Hayburn's   Case,   2    Dall.    410 135 

Hayes  v.  Missouri,  120  U.  S.  68 240 

Head  v.  Missouri  Univ.,  19  Wall.  526 129 

Headman  v.  Rose,  63  Ga.  458 65 

Head  Money   Cases,   112   U.   S.   580 115,  116 

Henderson  v.  New  York,  92  U.  S.  259 116 


TABLE  OF  CASES  395 


PAGE 

Henderson  Bridge  Co.  v.  Henderson,  141  U.  S.  679 117 

Henderson  Bridge  Co.  v.  Henderson,  173  U.  S.  592 118,  132 

Henderson  Bridge  Co.  v.  Kentucky,  166  U.  S.  150 118 

Hennington  v.  Georgia,   163  U.  S.   299 1 18,  213 

Hepburn  v.  Ellzey,  2  Cranch  445 124,  125,  135 

Hepburn  v.    Griswold,    8   Wall.   603 129,  144 

Hill  v.  Merchant's  Mut.  Ins.  Co.,  134  U.  S.  515 131 

Hinson  v.  Lett,  8  Wall.  148 114,  132 

Hodgson  v.  Bowerbank,  5  Cranch  303 135 

Hogan  v.  Kurtz,  94  U.  S.  773 60 

Holden  v.  Hardy,  169  U.  S.  366 214,  244 

Holden  v.  Minnesota,  137  U.  S.  483 128 

Hollingsworth  v.  Virginia,  3  Ball.  378 135,  148 

Holmes  v.  Jennison,  14  Pet.  540 115,  125,  141,  175 

Holyoke  Water-Power  Co.  v.  Lyman,  15  Wall.  500 129 

Home  Ins.  Co.  v.  Augusta,  93  U.  S.  116 129 

Home  Ins.  Co.  v.  Morse,  20  Wall.  445 136,  169 

Home  Ins.  Co.  v.  New  York,  134  U.  S.  606 241,  248 

Home  of  Friendless  v.  Rouse,  8  Wall.  430 129 

Homestead  Case,  1  Pa.  Dist.  785 69,  79,     86 

Hooker  v.  Los  Angeles,  188  U.  S.  314 137 

Hooper  v.   California,   155   U.   S.   648 118 

Hope  Ins.  Co.  v.  Boardman,  5  Cranch  57 135 

Hopkins  i?.   U.  S.,   171   U.  S.  578 118 

Hopt  v.  Utah,  110  U.  S.  574 126 

Homer  v.  U.  S.,  143  U.  S.  207 120,  142 

Horn  Silver  Min.  Co.  V.  New  York,  143  U.  S.  305 117 

Houston  v.  Moore,  5  Wheat.  1 108,   123,  124 

Houston,  etc.,  R.  Co.  v.  Texas,  170  U.  S.  243 131 

Howard  v.  Bugbee,  24  How.  461 128 

Howard  v.  Fleming,  191  U.  S.  126 138 

Howe  Mach.  Co.  v.  Gage,  100  U.  S.  676 116 

Humphrey  V.  Pegues,  16  Wall,  244 129 

Huntington  v.  Attrill,  146  U.  S.  657 140 

Huse  v.  Glover,   119  U.  S.  543 133 

Hyde  v.  Stone,  20  How.  170 136 

Hylton  v.  U.  S.,  3  Ball.  171 114,  153 

Illinois  Cent.  R.  Co.  v.  Adams,  180  U.  S.  28 132 

Illinois  Cent.  R.  Co.  v.  Illinois,  146  U.  S.  387 131 

Illinois  Cent.  R.  Co.  v.  Illinois,  163  U.  S.  142 118,  120 

Indiana  v.  Kentucky,  136  U.  S.  479 133 

Inglis  v.  Sailor's  Snug  Harbour,  3  Pet.  (U.  S.)   121. .  .8,  69,  134,  263 

Inman  Steamship  Co.  V.  Tinker,  94  U.  S.  238 132,  133,  148 

In  re  An  Alien,  1  Fed.  Cas.  No.  201a 60 

In  re  Bailey,  2  Sawy.  200 58 


306  TABLE  OF  CASES 


PAGE 

In  re  Bodek,  63  Fed.  Kep.  813,  3  Pa.  Dist.  725 57,    59 

In  re  Celestine,  114  Fed.  Rep.  553 53 

In  re  Chapman,  166  U.  S.  661 143 

In  re  Converse,  137  U.  S.  631 237 

In  re  Debs,  158  U.  S.  564 118,  120,  137 

In  re  Duncan,  139  U.   S.  449 141,  184 

In  re  Frederich,  149  U.  S.  70 125,  161 

In  re  Fronascone,  99  Fed.  Rep.  48 57 

In  re  Garnett,   141  U.   S.  1 1 17,  136 

In  re  Geagle,  135  U.  S.  356 136 

In  re  Giovanna,  93  Fed.   Rep.  659 51 

In  re  Green,  134  U.  S.  377 Ill,  121,  134 

In  re  Kanaka  Nian,  6  Utah  259 59 

In  re  Kemmler,  136  U.  S.  436 201,  211,  239 

In  re  Kollock,  165  U.  S.  526 115 

In  re  Langtry,  31  Fed.  Rep.  879 57 

In  re  Lennon,  166  U.  S.  548 137 

In  re  Loney,  134  U.  S.  373 121 

In  re  Look  Tin  Sing,  21  Fed.  Rep.  907 262,  264 

In  re  McCoppin,  5  Sawy.  630 6<? 

In  re  Neagle,  135  U.  S.  1 125,  161 

In  re  Quarles,  158  U.  S.  535 108 

In  re  Rahrer,  140  U.  S.  545 .117,  201,  212 

In  re  Rapier,   143  U.  S.   110 120,  142 

In  re  Rodriguez,  81  Fed.  Rep.  337 51,  58,  264,  266 

In  re  Ross,  140  U.  S.  453 145,  146 

In  re  Shibuya  Jugiro,  140  U.  S.  291 146,  237 

In  re  Spenser,  5  Sawy.  195 58,     59 

In  re  Tyler,    149   U.   S.    164 137 

In  re  Wy  Shing,  36  Fed.  Rep.  553 51 

In  re  Yung  Sing  Hee,  36  Fed.  Rep.  437 51 

Interstate  Commerce  Commission  v>.  Brimson,  154  U.  S.  447. . . . 

118,    137,  143 

Iowa  Cent.  R.  Co.  v.  Iowa,  160  U.  S.  393 240 

Irvine  V.  Marshall,  20  How.  558 136 

Israel  v.  Arthur,  152  U.  S.  355 137 

Jackson  v.  Goodell,  20  Johns.   (N.  Y.)   188 69 

Jackson  v.  Lamphire,  3  Pet.  280 128 

Jackson  v.  Twentyman,  2  Pet.   136 135 

Jaehne  v.  New  York,  128  U.  S.  189 128 

James  v.  Bowman,   190  U.  S.  127 203,  216,  258 

Japanese  Immigrant  Case,  189  U.  S.  86 145 

Jefferson  Branch  Bank  v.  Skelly,  1  Black  436 128 

Jennes  v.  Landes,  84  Fed.  Rep.  74 264 

Johnson  v.  Chicago,  etc.,  Elevator  Co.,  119  U.  S.  388 117,  127 


TABLE  OF  CASES  397 


PAGE 

Johnson  v.  New  York  L.  Ins.  Co.,  187  U.  S.  491 140 

Johnson  v.  Sayre,  158  U.  S.  109 145 

Johnson  v.  U.  S.,  29  Ct.  01.  1 59 

Jones  v.  Brim,  165  U.  S.  180 213 

Jones  v.  League,  18  How.  76 136 

Jones  v.  U.  S.,  137  U.  S.  202 136,  146 

Jones  v.  Van  Zandt,  5  How.  215 25,  141 

Justices  v.  Murray,  9  Wall.  274 146 

Kane  v.  McCarthy,  63  N.  Car.  299 63,     65 

Kansas  v.  Colorado,   185  U.  S.,  125 137,  148 

Keith  v.  Clark,  97  U.  S.  454 130 

Kelly  V.  Owen,  7  Wall.  496 64,     65 

Kelly  v.  Pittsburgh,  104  U.  S.  78 144 

Kendall  v.  U.  S.,  12  Pet.  524 124 

Kennard  v.  Louisiana,  92  U.  S.  480 239,  252 

Kentucky  v.  Dennison,  24  How.  66 136,  141,  175,  176,  177,  185 

Keokuk  Northern  Line  Packet  Co.  v.  Keokuk,  95  U.  S.  80 132,  133 

Keppel  v.  Petersburg  R.  Co.,  Chase   (U.  S.)    167,  14  Fed.  Gas. 

No.    7,722 70,     77 

Kidd  v.  Pearson,  128  U.  S.  1 117,  212 

Kilbourn  V.  Thompson,  103  U.  S.  168 113,  154 

Kimmish  v.  Ball,  129  U.  S.  217 140,  173,  213,  217 

Kirtland  v.  Hotchkiss,  100  U.  S.  491 116 

Klinger  v.  Missouri,    13  Wall.   257 125 

Knowlton  v.  Moore,  178  U.  S.  41 115 

Knoxville  Iron  Co.  v.  Harbison,  183  U.  S.  13 132 

Kohl  v.  U.  S.,  91  U.  S.  367 124,  144 

Koshkonong  v.  Burton,  104  U.  S.  668 130 

Kreitz  V.   Behrensmeyer,    125   111.    141 60 

Kring  v.  Missouri,  107  U.  S.  221 128,  142,  163,  165 

Kurtz  v.  Moffitt,  115  U.  S.  501 275 

La  Abra  Silver  Min.  Co.  v.  U.  S.,  175  U.  S.  423 114,  137 

Laeton  v.  Steele,  152  U.  S.  133 214 

Lafayette  Ins.  Co.  v.  French,  18  How.  404 168 

Laing  v.  Rigney,  160  U.  S.  531 137,  140 

Lake  Shore,  etc.,  R.  Co.  v.  Ohio,  165  U.  S.  365 118 

Lake  Shore,  etc.,  R.  Co.  V.  Ohio,  173  U.  S.  285 118 

Lake  Shore,  etc.,  R.  Co.  v.  Smith,  173  U.  S.  684 

132,    209,    214,  241 

Lamar  v.  Browne,  92  U.  S.  187 122 

Lane  County  v.  Oregon,  7  Wall.  76 110 

Langford  v.  U.  S.,  101  U.  S.  341 144 

Lanz  I?.  Randall,  4  Dill.  425 59 

Lascelles  v.  Georgia,   148  U.  S.   537 141,  176 

Laurent  v.  State,  1  Kan.  313 3 


308  TABLE  OF  CASES 


PAGE 

Law  of  Treason,  5  Blatchf .  549 84 

Law  of  Treason,  1  Story  614 , 84 

Lawton  v.  Steele,  152  U.  S.  133 159,  173 

Leeper  v.  Texas,  139  U.  S.  462 240 

Lees  v.  IL  S.,  150  U.  S.  476, 145,  267 

Lee  Sing  Far  v.  U.  S.,  94  Fed.  Rep.  834. . 51 

Legal  Tender  Case,  110  U.  S.  421 115 

Legal  Tender  Cases,  12  Wall.  457 108,  120,  129,  144 

Lehigh  Valley  R.  Co.  v.  Pennsylvania,  145  U.  S.  192 117 

Lehigh  Water  Co.  v.  Easton,  121  U.  S.  388 130 

Leisy  v.  Hardin,  135  U,  S.  100 117,  148,  212 

Leitensdorfer  v.   Webb,   20  How.   176 134 

Leloup  v.  Mobile*  127  U.  S.  640 117 

Lem  Moon  Sing  v.  U.  S.,  158  U.  S.  547 269 

Leonard  v.  Grant,  5  Fed.  Rep.   11 64 

Levin  v.  U.  S.,  128  Fed.  Rep.  826   56 

License  Cases,  5  How.  504    212 

License  Tax  Cases,  5  Wall.  462 114,  126,  132 

Lincoln  County  v.  Liming,  133  U.  S.  529 136 

Lindsay,  etc.,  Co.  v.  Mullen,  176  U.  S.  126 118 

Linford  v.  Ellison,  155  U.  S.  503 145 

Liverpool  Ins.  Co.  v.  Massachusetts,  10  Wall.  566 116,  140,  168 

Livingston   v.   Moore,   7   Pet.   469 146,  147 

Locke  1?.  New  Orleans,  4  Wall.   172 125,  128 

Lone  Wolf  v.  Hitchcock,  187  U.  S.  553 145 

Looker  v.  Maynard,  179  U.  S.  46 132 

Lord  v.  Goodall,  etc.,  Steamship  Co.,  102  U.  S.  541 116 

Loughborough  v.  Blake,  5  Wheat.  317 113,  114,  124 

Louisiana  i?.  New  Orleans,  102  U.  S.  203 130 

Louisiana  v.  New  Orleans,  108  U.  S.  568 136 

Louisiana  v.  New  Orleans,  109  U.  S.  285 130 

Louisiana  v.  Pilsbury,  105  U.  S.  278 130 

Louisiana  v.  Texas,   176  U.   S.   1 118,  137 

Louisville,  etc.,  Ferry  Co.  v.  Kentucky,  188  U.  S.  385 119,  209 

Louisville,  etc.,  R.  Co.  v.  Eubank,  184  U.  S.  27 119 

Louisville,  etc.,  R.  Co.  v.  Kentucky,  161  U.  S.  677 131 

Louisville,  etc.,  R.  Co.  v.  Kentucky,  183  U.  S.  503 119,  201,  236 

Louisville,  etc.,  R.  Co.  v.  Mississippi,  133  U.  S.  587 

117,    194,  245 

Louisville,  etc.,  R.  Co.  v.  Petson,  2  How.  497 135 

Louisville,  etc.,  R.  Co.  v.  Woodson,  134  U.  S.  614 145 

Louisville  Gas  Co.  v.  Citizen's  Gas  Co.,  115  U.  S.  683 130 

Louisville  Water  Co.  v.  Clark,  143  U.  S.  1 131 

Louisville  Water  Co.  V.  Kentucky,  170  U.  S.   127 131 

Luther  17.  Borden,  7  How.  (U.  S.)  1 7,  123,  125,  135,  141,  180,  181 


TABLE  OF  CASES  399 


PAGE 

Luxton  v.  North  River  Bridge  Co.,  153  U.  S.  525 117 

Lynch  v.  Clarke,  1  Sandf.  Ch.  (N.  Y.)  583 21,  24 

Lyng  v.  Michigan,  135  U.  S.  161 212 

Lyons  v.  Cunningham,  66  Cal.  42 3 

Mackin  v.  U.  S.,  117  U.  S.  348 144 

Mager  v.  Grima,  8  How.  490 115,  132 

Mahon  v.  Justice,  127  U.  S.  700.. 141,  148,  176 

Maine  v.  Grand  Trunk  R.  Co.,  142  U.  S.  217 117 

Mallett  v.  North  Carolina,  181  U.  S.  589 128 

Manchester  v.  Massachusetts,  139  U.  S.  240..  117,  136,  140,  148,  173 

Manning  v.  French,    133   U.   S.   186 145,  147 

Marbury  v.  Madison,  1  Cranch'  137 135 

Marchant  v.  Pennsylvania  R.  Co.,  153  U.  S.  380 145 

Marlin  Fire  Arms  Co.  v.  Shields,  171  N.  Y.  384 190 

Marshall  v.  Baltimore,  etc.,  R.  Co.,  16  How.  314 135 

Martin  v.  Hunter,  1  Wheat.  304 121,  122,  135,  148 

Martin  v.  Mott,   12  Wheat.   19 123 

Marye  v.  Parsons,  114  U.  S.  325 130 

Maryland  v.  Baltimore,  etc.,  R.  Co.,  3  How.  534 128 

Mason  v.  Haile,   12  Wheat.  370 128 

Mason  v.  Missouri,  162  U.  S.  565 216 

Massachusetts  t?.  Western  Union  Tel.  Co.,  141  U.  S.  40 117 

Matter  of ,  7  Hill  (N.  Y.)   137 59 

Matter  of  Christern,  43  N.  Y.  Super.  Ct.  523 56,  59 

Matter  of  Clark,  18  Barb.  446 59 

Matter  of  Conner,  39  Cal.  98 56 

Matter  of  Desty,  8  Abb.  N.  Cas.   (N.  Y.)   250 60 

Matter  of  Ramsden,   13  How.   Pr.    (N.  Y.)    429 56 

Matthews  v.  Zane,  7  Wheat.  164 135 

Mattox  v.  U.  S.,   156  U.  S.  237 146,  260 

Maxwell  v.  Dow,  176  U.  S.  581 145,  146,  197,  211,  238 

May  v.  New  Orleans,   178   U.  S.   496 133 

Mayfield  v.  Richards,  115  U.  S.  137 122 

Mayhew   v.    Thatcher,    6    Wheat.    129 139 

Maynard  v.  Hill,  125  U.  S.  190 130 

McAllister  v.  U.  S.,  141  U.  S.  174 121 

McCall  v.  California,  136  U.  S.   104 117 

McCarthy  v.  Marsh,   5  N.  Y.  263 59 

McChord  v.  Louisville,  etc.,  R.  Co.,  183  U.  S.  483 119 

McCracken  v.  Hayward,  2  How.  608 128 

McCready  v.  Virginia,  94  U.  S.  391 116,  140,  159,  173,  174 

McCullough   v.   Virginia,    172   U.    S.    102 132,  137 

McDaniel  V.  Richards,   1  McCord  L.    (S.  Car.)    187 60 

McDonald  v.  Massachusetts,  180  U.  S.  311 128,  145,  147,  238,  245 

McElrath  v.  U.  S.,  102  U.  S.  426 146 


310  TABLE  OF  CASES 


PAGE 

McElvaine  v.  Brush,  142  U.  S.  155 147 

McGahey  v.  Virginia,  135  U.  S.  662 131 

McGuire  v.  Massachusetts,  3  Wall.  387 114 

McNulty  v.  California,  149  U.  S.  645 137 

McPherson  v.  Blacker,  146  U.  S.  1 111,  134,  201,  216,  218,  236,  258 

M'Culloch  v.  Maryland,  4  Wheat.  (U.  S.)  316 

22,  25,  108,  114,  132,  147,  148 

Medley,  Petitioner,  134  U.  S.  160 128 

M'Elmoyle  v.  Cohen,  13  Pet.  312  139 

Memphis,  etc.,  R.  Co.  v.  Gaines,  97  U.  S.  697 130 

Memphis,  etc.  R.  Co.  v.  Tennessee,  101  U.  S.  337 130 

Memphis  Gas  Light  Co.  v.  Shelby  County  Taxing  Dist., 

109  U.  S.  398 130 

Merchant's  Nat.  Bank  V.  U.  S.,  101  U.  S.  1 115 

Messenger's  Trial,  J.  Kel.  70 85 

Meyer  v.  Richmond,  172  U.  S.  82 137 

M'Growther's  Case,  1  East  P.  C.  71,  Foster  Crown  Law  13 88 

Michigan  v.  Flint,  etc.,  R.  Co.,  152  U.  S.  363 137 

Miller  v.  Cornwall  R.  Co.,  168  U.  S.  131 137 

Miller  v.  New  York,  15  Wall.  478 129 

Miller  v.  New  York,  109  U.  S.  385 116 

Miller  v.  Reinhart,  18  Ga.  239 60 

Miller  v.  U.  S.,  11  Wall.  268 122,  144,  146 

Mills  v.  Duryea,  7  Cranch  481 139 

Minneapolis  v.  Reum,  56  Fed.  Rep.  580 23 

Minneapolis  v.  Reum,  12  U.  S.  App.  446 53 

Minneapolis  Eastern  R.  Co.  v.  Minnesota,  134  U.  S.  467 208 

Minneapolis,  etc.,  R.  Co.  v.  Beckwith,  129  U.  S.  209 241 

Minneapolis,  etc.,  R.  Co.  v.  Minnesota,  186  U.  S.  257 119 

Minnesota  v.  Barber,  136  U.  S.  318 117,  213 

Minor  v.  Happersett,  21  Wall.  (U.  S.)  162 

3,  4,  18,  63,  100,  215,  216,  259 

Mississippi  v.  Johnson,  4  Wall.  475 136 

Missouri  V.  Dockery,  191  U.  S.  170 201 

Missouri  v.  Illinois,  180  U.  S.  208 137 

Missouri  v.  Lewis,  101  U.  S.  22 206,  208,  254 

Missouri  v.  Murphy,  170  U.  S.  78 131 

Missouri,  etc.,  R.  Co.  v.  Haber,  169  U.  S.  613 118,  148 

Missouri,  etc.,  R.  Co.  V.  McCann,  174  U.  S.  580 118 

Missouri,  etc.,  R.  Co.  v.  Rock,  4  Wall.  177 129 

Missouri  Pac.  R.  Co.  v.  Humes,  115  U.  S.  513 242 

Missouri  Pac.  R.  Co.  v.  Mackey,  127  U.  S.  209 241,  243 

Missouri  Pac.  R.  Co.  v.  Nebraska,  lt>4  U.  S.  403 208 

Mitchell  v.  Clark,  110  U.  S.  633 121 

Mitchell  1?.  Harmony,  13  How.  115 144 


TABLE  OF  CASES  3H 


PAGE 

M'Millan  v.  M'Neil,  4  Wheat.  (U.  S.)  209 119,  128 

Mobile  v.  Watson,  116  U.  S.  289 130 

Mobile  County  v.  Kimball,  102  U.  S.  691 116,  157 

Mobile,  etc.,  R.  Co.  v.  Tennessee,  153  U.  S.  486...  131,  137,  201,  211 

Mobile  Transp.  Co.  v.  Mobile,  187  U.  S.  410 137 

Monongahela  Nav.  Co.  v.  U.  S.,  148  U.  S.  312 117,  145 

Montana  Co.  v.  St.  Louis  Min.,  etc.,  Co.,  152  U.  S.  160 214 

Montgomery  v.  Portland,  190  U.  S.  89 119 

Moore  v.  Illinois,  14  How.  13 25,  140,  141,  144 

Moran  v.  New  Orleans,  112  U.  S.  69 116 

Morewood  v .  Enequist,  23  How.  491 136 

Morgan  v.  Dudley,  18  B.  Mon.  693 56 

Morgan's  Steamship  Co.  v.  Louisiana  Board  of  Health,  118 

U.  S.  455 117,127 

Morley  v.  Lake  Shore,  etc.,  R.  Co.,  146  U.  S.  162 131 

Morris  v.  Hitchcock,  194  U.  S.  384 213 

Mossman  v.  Higginson,  4  Dall.  12 135 

Motes  v.  U.  S.,  178  U.  S.  458 146 

Moultrie  County  v.  Rockingham  Ten-Cent  Sav.  Bank,  92  U.  S. 

631  129 

Mrs.  Alexander's  Cotton,  2  Wall.  404 122 

Mugler  v.  Kansas,  123  U.  S.  623 212 

Muller  v.  Dows,  94  U.  S.  444 136 

Mulligan  v.  Corbins,  7  Wall.  487 129 

Mumma  v.  Potomac  Co.,  8  Pet.  281 128 

Munn  v.  Illinois,  94  U.  S.  113 126,  127,  251 

Murray  v.  Charleston,  96  U.  S.  432 129 

Murray  v.  Hoboken  Land,  etc.,  Co.,  18  How.  272 

121,  136,  143,  144,  250,  253 

Nalle  V.  Fenwick,  4  Rand.  ( Va.)  585 60 

Nashua,  etc.,  R.  Corp.  v.  Boston,  etc.,  R.  Corp.,  136  U.  S.  356. ..  136 

Nashville,  etc.,  R.  Co.  v.  Alabama,  128  U.  S.  96 25,  117 

Natal  v.  Louisiana,  139  U.  S.  621 214 

Nathan  v.  Louisiana,  8  How.  73 115 

Navigation  Laws,  17  Op.  Atty.-Gen.  534 60 

Neal  v.  Delaware,  103  U.  S.  370 206,  208,  216,  217,  259 

Neely  v.  Henkel,  180  U.  S.  109 126,  145 

Neil  v.  Ohio,  3  How.  720 128 

Nelson  v.  Police  Jury,  111  U.  S.  716 130 

Neves  v.  Scott,  13  How.  268 .' 135 

New  England  Mut.  Marine  Ins.  Co.  V.  Dunham,  11  Wall.  1 136 

New  Haven,  etc.,  R.  Co.  v.  Hamersley,  104  U.  S.  1 130 

New  Jersey  v.  New  York,  5  Pet.  284 135 

New  Jersey  v.  Wilson,  7  Cranch  164 128 

New  Jersey  v.  Yard,  95  U.  S.  104 129 


312  TABLE  OF  CASES 


PAGE 

New  Orleans  v.  Benjamin,  153  U.  S.  411 131,  137 

New  Orleans  v.  De  Armas,  9  Pet.  224 135 

New  Orleans  v.  Houston,  119  U.  S.  265 130 

New  Orleans  v.  Morris,  105  U.  S.  600 130 

New  Orleans  V.  New  Orleans  Water-Works  Co.,  142  U.  S.  79 131 

New  Orleans  City,  etc.,  R.  Co.  v.  Louisiana,  157  U.  S.  219 131 

New  Orleans  City,  etc.,  R.  Co.  v.  New  Orleans,  143  U.  S.  192...  131 

New  Orleans  Gas  Co.  v.  Louisiana  Light  Co.,  115  U.  S.  650..  130 
New  Orleans  Water- Works  Co.  v.  Louisiana  Sugar  Refining  Co., 

125  U.  S.  18 130 

New  Orleans  Water- Works  Co.  v.  Rivers,  115  U.  S.  674 130 

Newport,  etc.,  Bridge  Co.  v.  U.  S.,  105  U.  S.  470 116 

Newport  Light  Co.  v.  Newport,  151  U.  S.  527 137 

Newton  v.  Mahoning  County,  100  U.  S.  548 130 

New  York  v.  Miln,  11  Pet.  102 109,  115 

New  York  v.  Knight,  192  U.  S.  21 119 

New  York  v.  Roberts,  171  U.  S.  658 118 

New  York  v.  Squire,  145  U.  S.  175 131,  214 

New  York,  etc.,  R.  Co.  v.  Bristol,  151  U.  S.  556 . .  131,  137,  214,  242 

New  York,  etc.,  R.  Co.  v.  New  York,  165  U.  S.  628 118 

New  York,  etc.,  R.  Co.  v.  Pennsylvania,  153  U.  S.  628 115,  131 

New  York,  etc.,  R.  Co.  v.  Pennsylvania,  158  U.  S.  431 118 

New  York  Guaranty,  etc.,  Co.  v.  Board  of  Liquidation,  105 

Ui  S.  622 130 

New  York  L.  Ins.  Co.  v.  Cravens,  178  U.  S.  389 118,  132 

Nichol  v.  Ames,  173  U.  S.  509 115,  126,137 

Nichimura  Ekiu  v.  U.  S.,  142  U.  S.  651....  117,  119,  122,  123,  267 

Norfolk,  etc.,  R.  Co.  v.  Pennsylvania,  136  U.  S.  114 117 

Norris  v.  Boston,  7  How.  414 127 

North  Carolina  v.  Yemple,  134  U.  S.  22 136 

Northern  Cent.  R.  Co.  v.  Maryland,  187  U.  S.  258 132 

Northern  Securities  Co.  v.  Minnesota,  194  U.  S.  48 241 

Northern  Securities  Co.  v.  U.  S.,  193  U.  S.  197....  119,  155,  158 

Northwestern  Fertilizing  Co.  v.  Hyde  Park,  97  U.  S.  659 129 

Northwestern  Union  Packet  Co.  v.  St.  Louis,  100  U.  S.  423.. 

116,  126,  133 

Northwestern  Univ.  v.  People,  99  U.  S.  309 130 

Norwich,  etc.,  R.  Co.  v.  Johnson,  15  Wall.  195 129 

Norwood  v.  Baker,  172  U.  S.  269 208 

Nutting  V.  Massachusetts,  183  U.  S.  553 1 19 

Ochiltree  v.  Iowa  R.  Contracting  Co.,  21  Wall.  249 129 

Ogden  v.  Saunders,  12  Wheat.  213 54,  119,  120,  125,  128,  164 

Ohio  v.  Dollison,  194  U.  S.  445 149,  191 

Ohio  v.  Thomas,  173  U.  S.  276 124 

Ohio,  etc.,  R.  Co.  v.  McClure,  10  Wall.  511 129 


TABLE  OF  CASES  3^3 


PAGE 

Ohio,  etc.,  R.  Co.  v.  Wheeler,  1  Black  286 136 

Ohio  Oil  Co.  v.  Indiana,  177  U.  S.  190 214 

O'Neil  I?.  Vermont,  144  U.  S.  323 117,  147 

Opinion  of  Justices,  44  Me.  507 3 

Orient  Ins.  Co.  v.  Daggs,  172  U.  S.  561 168,  242,  251 

Orr  v .  Oilman,  183  U.  S.  278 132 

Osborne  v.  Florida,  164  U.  S.  650 118 

Osborne  V.  Mobile,  16  Wall.  479 116 

Osborn  V.  Nicholson,  13  Wall.  654 29,  129,  144,  192,  193 

Osborn  v.  U.  S.  Bank.  9  Wheat.  738 53,  114,  121,  135,  148 

Oshkosh  Waterworks  Co.  v.  Oshkosh,  187  U.  S.  437 132 

Otis  1?.  Parker,  187  U.  S.  606 245 

Ouachita  Packet  Co.  v.  Aiken,  121  U.  S.  444 133,  148 

Owensboro  v.  Owensboro  Waterworks  Co.,  191  U.  S.  358 132 

Ovvings  v.  Norwood,  5  Cranch  344 135 

Owings  v.  Speed,  5  Wheat.  420 128 

Oxley  Stave  Co.  v.  Butler  County,  166  U.  S.  648 137 

Pace  v.  Alabama,  106  U.  S.  583 244 

Pace  v.  Burgess,  92  U.  S.  372 126 

Pacific  Express  Co.  v.  Seibert,  142  U.  S.  339 117 

Pacific  R.  Co.  v.  Maguire,  20  Wall.  36 129 

Parkersburg,  etc.,  Transp.  Co.  v.  Parkersburg,  107  U.  S.  691 

133,  136 

Parkinson  v.  U.  S.,  121  U.  S.  281 144 

Parsons  v.  Bedford,  3  Pet.  433 146 

Passaic  Bridges,  3  Wall.  782 115 

Passaic  River,  etc.,  Bridge  v.  Hoboken  Land,  etc.,  Co.,  1  Wall. 

116  129 

Patapsco  Guano  Co.  v.  North  Carolina  Board  of  Agriculture, 

171  U.  S.  345 118,133 

Patterson  v.  Bark  Eudora,  190  U.  S.  169 119,  138 

Patton  v.  Brady,  184  U.  S.  608 137 

Paul  v.  Virginia,  8  Wall.  168 115,  139,  140,  168 

Paup  v.  Drew,  10  How.  218 128 

Payne  v.  Hook,  7  Wall.  425 136 

Pearce  v.  Texas,  155  U.  S.  311 178 

Pearsall  v.  Great  Northern  R.  Co.,  161  U.  S.  646 131 

Pearson  v.  Yewdall,  95  U.  S.  294 236 

Peete  v.  Morgan,  19  Wall.  581 116,  133 

Peguinot  v.  Detroit,  16  Fed.  Rep.  214 264 

Pembina  Consol.  Silver  Min.,  etc.,  Co.  v.  Pennsylvania,  125 

U.  S.  181 118,  140,  169,  241,  242 

Pennie  v.  Reis,  132  U.  S.  464 130 

Penniman's  Case,  103  U.  S.  714 130 

Pennoyer  v.  McConnaughy,  140  U.  S.  1 131 


314 


TABLE  OF  CASES 


PAGE 

Pennoyer  v.  Neff,  95  U.  S.  714 121,  139 

Pennsylvania  v.  Wheeling,  etc.,  Bridge  Co.,  13  How.  518 

115,  135,  146 

Pennsylvania  v.  Wheeling,  etc.,  Bridge  Co.,  18  How.  421 .... 

115,  120,  126,  127 

Pennsylvania  College  Cases,  13  Wall.  190 129 

Pennsylvania  R.  Co.  V.  Miller,  132  U.  S.  75 130 

Pensacola  Tel.  Co.  v.  Western  Union  Tel.  Co.,  96  U.  S.  1 

116,  120,  121 

Peonage  Cases,  123  Fed.  Rep.  671 192 

People  v.  Compagnie  Generale  Transatlantique,  107  U.  S.  59...  132 

People  v.  Cook,  148  U.  S.  397 131 

People  v.  Hyatt,  72  N.  Y.  176 177 

People  v.  Lynch,  11  Johns.  (N.  Y.)  550 80 

People  v.  McGowan,  77  111.  644 56,  60 

People  v.  McNally,  59  How.  Pr.  500 60 

People  v.  Sweetman,  3  Park.  Grim.  (N.  Y.)  358 56 

Pervear  v.  Massachusetts,  5  Wall.  475 114,  147 

Petit  v.  Minnesota,  177  U.  S.  164 213,  214 

Philadelphia  v.  Collector,  5  Wall.  720 136 

Philadelphia,  etc.,  Steamship  Co.  V.  Pennsylvania,  122  U.  S. 

326  117 

Philadelphia  Fire  Assoc.  v.  New  York,  119  U.  S.  110 

117,  140,  168,  242 

Phillips  v.  Payne,  92  U.  S.  130 124 

Pickard  v.  Pullman  Southern  Car  Co.,  117  U.  S.  34 116 

Pierce  v.  Carskadon,  16  Wall.  234 126 

Pierce  v.  New  Hampshire,  5  How.  585 120 

Piqua  Branch  of  State  Bank  v.  Knoop,  16  How.  369 128 

Pittsburg,  etc.,  Coal  Co.  v.  Bates,  156  U.  S.  577 118,  126,  133,  140 

Pittsburg,  etc.,  Coal  Co.  v.  Louisiana,  156  U.  S.  590 118,  133 

Planter's  Bank  v.  Sharp,  6  How.  301 128 

Plessy  v.  Ferguson,  163  U.  S.  537 29,  193,  194,  199,  246 

Plumley  v.  Massachusetts,  155  U.  S.  461 118,  137 

Poindexter  v.  Greenhow,  114  U.  S.  270 130 

Pollard  v.  Hagan,  3  How.  212 25 

Pollock  17.  Farmers'  L.  &  T.  Co.,  157  U.  S.  429. . .  .112,  115,  148,  153 

Pollock  v.  Farmers'  L.  &  T.  Co.,  158  U.  S.  601 112,  153 

Poole  v.  Fleeger,  11  Pet.  185 133 

Pope  v.  Williams,  193  U.  S.  621 216,  220/227 

Postal  Tel.  Cable  Co.  v.  Adams,  155  U.  S.  688 118 

Postal  Tel.  Cable  Co.  v.  Charleston,  153  U.  S.  692 117 

Postal  Tel.  Cable  Co.  v.  Taylor,  192  U.  S.  64 119 

Postmaster  at  New  Orleans,  9  Op.  Atty.-Gen.  259 53 

Pound  v.  Turck,  95  U.  S.  459 116 


TABLE  OF  CASES  315 


PAGE 

Powell  v.  Pennsylvania,  127  U.  S.   678 201,213 

Powers  of  Congress,    ( 1855)   8  Op.  Atty.-Gen.  139 69 

Prentice  v.  Miller,  82  Cal.  570 60 

Presser  v.  Illinois,   116   U.  S.  252 133,  240,  252 

Preto's  Case,  10  Op.  Atty.-Gen.  321 266 

Prigg  v.  Pennsylvania,  16  Pet.  539 25,  26,  135,  141 

Propeller  Genesee  Chief  v.  Fitzhugh,   12  How.  443 115,  135 

Prout  v.  Starr,   188  U.  S.  537 209 

Providence  Bank  v.   Billings,   4   Pet.   514 128 

Public  Clearing  House  v.  Coyne,   194  U.  S.  497 245 

Pullman's  Palace  Car  Co.  v.  Pennsylvania,  141  U.  S.  18 117 

Pumpelly  v.  Green  Bay,  etc.,  Canal  Co.  13  Wall.  166 144 

Railroad  Commission  Cases,  116  U.  S.  307,  347,  352 116 

Rasmussen  V.  Idaho,   181  U.  S.   198 118,  173,  213 

Rassmussen  V.  U.  S.,  197  U.  S.  516 34 

Ratterman  V.  Western  Union  Tel.  Co.,  127  U.  S.  411 117 

Raymond  V.  Raymond,  83  Fed.  Rep.  721 53 

Reagan  v.  Farmers'  L.  &  T.  Co.,  154  U.  S.  362 137,  208 

Red  River  Valley  Nat.  Bank  v.  Craig,   181  U.  S.  548 132 

Reetz  v.  Michigan,   188  U.   S.   505 128,  215 

Reg.  v.  Frost,  9  C.  &  P.  129,  38  E.  C.  L.  70 84 

Reg.  v.  Gallagher,  15  Cox    (C.  C.)   291 84 

Reg.  v.  McCafferty,  10  Cox  (C.  C.)   603 85 

Reid  v.  Colorado,  187  U.  S.  137 119,  173,  213 

Renaud  v.  Abbott,  116  U.  S.  277 139 

Respublica  v.  Chapman,  1  Ball.    (Pa.)    53 70,  74,  77 

Respublica  v.  McCarty,  2  Dall.    (Pa.)    86 88,  89 

Rex  v.  Cook,  13  How.  St.  Tr.  391 84 

Rex  V.  Cranburne,   13   How.   St.  Tr.  227 74 

Rex  V.  Dammaree,  15  How.  St.  Tr.  522 85,    90 

Rex  v.  Gregg,  14  How.  St.  Tr.  1376 89 

Rex  V.  Regicides,  5  How.  St.  Tr.  1224 85 

Rex  v.  Stone,  6  T.  R.  527 84 

Rex  V.  Vaughan,  13  How.  St.  Tr.  486 74,  82,  85,     87 

Reymann   Brewing  Co.   v.   Brister,    179   U.   S.    445 118,212 

Reynolds  v.  Stockton,  140  U.  S.  254 139 

Reynolds  v.  U.  S.,  98  U.  S.   145 142,  146,  186,  187 

Rhode  Island  v.  Massachusetts,  12  Pet.  657 135,  140 

Rhodes  v.  Iowa,  170  U.  S.  412 118 

Richmond,  etc.,  R.  Co.  v.  Louisa  R.  Co.,  13  How.  71 128 

Richmond,   etc.,   R.    Co.   v.   R.   A.    Patterson   Tobacco    Co.,    169 

U.   S.   311 118 

Richmond,   etc.,   R.   Co.   v.   Richmond,   96   U.    S.   521 129,  214 

Right  of  Expatriation,   (1859)   9,  Op.  Atty.-Gen.  356 

69,  262,  264,  265 


310  TABLE  OF  CASES 


PAGE 

Ritchie  v.  Putnam,  13  Wend.  524 60 

Robbins  v.  Shelby  County  Taxing  Dist.,  120  U.  S.  489 117,  157 

Roberts  v.  Reilly,  116  U.  S.  80 176 

Robertson  v.  Baldwin,  165  U.  S.  275 29,  121,  137,  189,  194,  195 

Robertson  «?.  Pickrell,  109  U.  S.  608 139 

Roff  V.  Burney,  168  U.  S.  218 53 

Rogers  v.  Alabama,   192   U.   S.   226 138,   206,  208 

Roller  v.  Holly,   176  U.   S.   398 209 

Rose  v.  Himely,  4  Cranch  241 135 

Rosen  v.  U.   S.,  161  U.  S.  29 146 

Royall   v.   Virginia,    116   U.    S.   572 209,215 

Ruckgaber   v.  Moore,   104   Fed.   Rep.    948 64,   65,  264 

Rushworth  v.  Judges,  58  N.  J.  L.  97 56 

Sands  v.  Manistee  River  Imp.  Co.,  123  U.  S.  288 117 

Santa  Clara  County  v.  Southern  Pac.  R.   Co.,   118  U.   S.   394 

208,  241 

Sasportas  v.  De  La  Motta,  10  Rich,  Eq.    (S.  Car.)   38 60 

Satterlee  V.   Matthewson,   2    Pet.   380 128 

Schaefer  v.  Werling,  188  U.  S.  516 137 

Schmidt  V.  Cobb,  119  U.  S.  286 212 

Scholey   V.   Rew,   23   Wall.   331 112,  115 

Schollenberger  v.  Pennsylvania,  171  U.  S.  1 118 

Schooner  Exchange  v.  M'Faddon,  7  Cranch  116 69 

Schultz's    Petition,    64   N.   H.    241 58 

Scotland  County  Ct.  v.  U.  S.,  140  U.  S.  41 131 

Scott   v.   Donald,    165    U.    S.    58 118,    133,  137 

Scott  v.  McNeal,  154  U.  S.  34 201,  209 

Scott  v.  Neely,   140  U.  S.   106 147 

Scranton  v.  Wheeler,   179  U.  S.  141 118,  145 

Seibert   V.   Lewis,    122    U.    S.    284 130 

Sentell  v.  New  Orleans,  etc.,   R.   Co.,   166  U.   S.   698 256 

Sere  v.  Pitot,   6  Cranch    (U.   S.) 332 23,     47 

Sewing  Mach.  Co.'s  Case,  18  Wall.  553 136 

Shapleigh  v.  San  Angelo,  167  U.  S.  646 131 

Sheldon    v.    Sill,    8    How.    441 135 

Sherlock  v.  Ailing,  93  U.  S.  99 116 

Shively  v.  Bowlby,  152  U.  S.  48 48 

Shoemaker  v.   U.   S.,    147   U.   S.   282 124 

Shortridge  v.  Macon,  Chase   (U.  S.)    136 70 

Simmons  v.   Saul,   138  U.    S.   439 139 

Simmons  v.  U.   S.,    142   U.   S.    148 145 

Sinking   Fund    Cases,    99    U.    S.    700 144 

Sinnot  v.  Davenport,  22  How.  227 115 

Sioux  City  St.  R.  Co.  v.  Sioux  City,  138  U.  S.  98 131 

Slade  v.  Minor,  2  Cranch    (C.  C.)    139 60 


TABLE  OF  CASES 


PAGE 
Slaughter  House  Cases,  16  Wall.  36 

20,  29,  31,  32,  51,  66,  99,  140,  173,  193,  197,  198,  211,  227 

Smiley  v.  Kansas,   196  U.  S.  447 214 

Smith  v.   Alabama,   124  U.   S.   465 117 

Smith  1?.   Maryland,    18   How.   71 115,    135,  143 

Smith   v.    Mississippi,    162    U.    S.    592 241 

Smith   v.   Reeves,    178   U.    S.   436 137 

Smith  v.  St.  Louis,  etc.,  R.  Co.,  181  U.  S.  248 118 

Smith   v.   Turner,    7    How.    283 54,  115 

Smyth  v.   Ames,    169   U.    S.   466 137,   208,   209,  241 

Sohn    v.    Waterson,     17    Wall.    596 129 

Soon  King  v.  Crowley,  113  U.  S.  703 211,  255 

South  Carolina  v.  Georgia,  93  U.  S.  4 116 

South  Dakota  v.  North  Carolina,  192  U.  S.  286 138 

Southern  Pac.  R.  Co.  V.  California,  118  U.  S.  109 136 

Southern  Pac.  R.  Co.  v.  Denton,  146  U.  S.  202 135 

Southern  Steamship  Co.  v.  Port  Wardens,  6  Wall.  31 115 

South,  etc.,  Alabama  R.  Co.,  v.  Alabama,  101  U.  S.  832 130 

Southwestern  Coal  Co.  V.  McBride,   185  U.  S.  499 126 

Sparenburgh  v.  Bannatyne,  1  B.  &  P.  163 87,  88 

Spencer  v.  Duplan  Silk  Co.,  191  U.  S.  526 138 

Spies  v.  Illinois,  123  U.  S.  131 142,  143,  144,  146,  147,  148,  149 

Spraigue  v.  Thompson,  118  U.  S.  90 127 

Spratt  v.  Spratt,  4  Pet.  406 59 

Spreckels  Sugar  Refining  Co.  v.  McClain,  192  U.  S.  397 138 

f  pringer  v.  U.   S.,    102   U.   S.   586 115,  126 

Spring  Valley  Water  Works  v.  Schottler,  110  U.  S.  347 130 

Sprott  v.   U.    S.,  20  Wall.   459 70,  90 

Stanislaus  County  v.  San  Joaquin,  etc.,  Canal  Co.,  192  U.  S. 

201  132 

St.  Anna's  Asylum  V.  New  Orleans,  105  U.  S.  362 130 

St.  Anthony  Falls  Water  Power  Co.  v.  St.  Paul  Water  Com'rs., 

168   U.    S.   349 118,    131,  148 

Stark  v.  Chesapeake  Ins.  Co.,  7  Cranch  420 60 

State    V.    Barrett,    40    Minn.    65 57,  59 

State  v.   Denoyer,   6   N.   Dak.    586 53 

State  v.   Hoeflinger,   35  Wis.   393 60 

State  v.  Hunt,  2  Hill  L.    (S.  Car.)    1 68 

State  v.   Macdonald,   24  Minn.   48 59 

State  v.  Manuel,  4  Dev.  &  B.  L.   (N.  Car.)  26 21 

State  v.  MacDonald,  2  Port.   (Ala.)    449 79 

State  v.  M'Donald,  4  Port.    (Ala.)    449 , 84 

State  v.  Webster,  7  Neb.  471 56 

State  v.  Whittemore,  50  N.   H.   245 56 

State  Freight  Tax  Case,  15  Wall.  232 116 


318  TABLE  OF  CASES 


PAGE 

State  Railroad  Tax  Cases,  92  U.  S.  612 249 

State  Tax  on  Foreign-held  Bonds,  15  Wall.  300 114,  129 

State  Tax  on  Railway  Gross  Receipts,  15  Wall.  284 116,  132 

State  Tonnage  Tax  Cases,  12  Wall.  204 132,  133 

St.  Clair  County  v.  Interstate  Sand,  etc.,  Co.,  192  U.  S.  454 119 

Stearns  V.  Minnesota,  179  U.  S.  223 132 

Stein  v.  Beinville  Water  Supply  Co.,  141  U.  S.  67 131 

Stevens  v.  Nichols,  157  U.  S.  370 137 

Stewart  v.  Kahn,  11  Wall.  493 47,  122 

St.  Louis  Consol.  Coal  Co.  v.  Illinois,  185  U.  S.  203 214 

St.  Louis,  etc.,  R.  Co.  v.  Gill,  156  U.  S.  649 131,  137 

St.  Louis,  etc.,  R.  Co.  v.  James,  161  U.  S.  545 133,  137 

St.  Louis,  etc.,  R.  Co.  v.  Mathews,  165  U.  S.  1 131 

Stockard  v.  Morgan,  185  U.  S.  27 119 

Stone  v.  Mississippi,  101  U.  S.  814 130 

Stoughton  v.  Taylor,  2  Paine  661 263,  266 

Stoutenburgh  v.  Hennick,  129  U.  S.  141 117,  124 

St.  Paul  Gas  Light  Co.  v.  St.  Paul,  181  U.  S.  142 132 

Strader  v.  Graham,  10  How.  82 25,  141 

Strauder  V.  West  Virginia,  100  U.  S.  303 29,  197,  204,  208 

Strawbridge  v.  Curtiss,  3  Cranch  267 135 

Strickley  v.  Hill,  22  Utah  268 60 

St.  Tammany  Water-Works  v.  New  Orleans  Water-Works,  120 

U.  S.  64 130 

Stuart  v.  Laird,  1  Cranch  299 121 

Sturges  v.  Crowninshield,  4  Wheat.  122 119,  128 

Susquehanna,  etc.,  Valley  R.,  etc.,  Co.  v.  Blatchford,  11  Wall. 

172 136 

Suydam  v.  Broadnax,  14  Pet.  67 119,  135 

Swafford  v.  Templeton,  185  U.  S.  487 Ill,  137,  216,  219,  259 

Sweet  v.  Rechel,  159  U.  S.  380 145 

Talbot  v.  Janson,  3  Dall.  162 263 

Talton  v.  Mayes,  163  U.  S.  376 145 

Tarble's  Case,  13  Wall.  397 108,  123,  125,  136,  161 

Tarrance  v.  Florida,  188  U.  S.  519 206,  208 

Taylor  v.  Beckham,  178  U.  S.  548 141,  184,  216,  249 

Taylor  v.  Taintor,  16  Wall.  366 141 

Tennessee  v.  Davis,  100  U.  S.  257 136,  148 

Tennessee  v.  Pullman  Southern  Car  Co.,  117  U.  S.  51 116 

Tennessee  v.  Sneed,  96  U.  S.  69 129 

Terrett  v.  Taylor,  9  Cranch  43 142,  187 

Terry  v.  Anderson,  95  U.  S.  628 129 

Texas  v.  White,  7  Wall.  700 141,  148,  183 

Texas  v.  White,  116  U.  S.  252 124 

Texas,  etc.,  R.  Co.  v.  Interstate  Transp.  Co.,  155  U.  S.  585 118 


TABLE  OF  CASES  3^9 


PAGE 

Texas,  etc.,  R.  Co.  v.  Southern  Pac.  Co.,  137  U.  S.  48 117 

The  Acorn,  2  Abb.  434 60 

The  Alicia,   7   Wall.   571 136 

The  Brig  Amy  Warwick,  2  Black  673 110 

The   Daniel    Ball,    10    Wall.    557 116 

The  Hine  v.  Trevor,  4  Wall.   555 136 

The  Lottawanna,  21   Wall.   558 116,  136 

The  Miantinomi,  3  Wall.  Jr.  (C.  C.)  46,  17  Fed.  Cas.  No.  9,521  120 

The    Montello,    11    Wall.    411 116 

The  Moses  Taylor,  4  Wall.  411 136 

The  Pizarro,  2  Wheat.  (U.  S.)  227 4 

The   Propeller   Commerce,    1    Black    574 136 

The  Roanoke,   189   U.    S.    185 119,137 

The  Steamer  St.  Lawrence,  1  Black  522 .' 136 

The  Venus,   8  Cranch  280 270 

Thomas    v.    U.    S.,    192    U.    S.    363 112,  115 

Thomasson   v.    State,    15   Ind.    449    3 

Thomson  V.   Pacific  R.   Co.,    9   Wall.    579 115 

Thompson  v.  Missouri,   171  U.   S.  380 128 

Thompson  v.  Utah,  170  U.  S.  343 146 

Thompson   v.    Whitman,    18    Wall.    457 139 

Thorington  v.  Montgomery,  147  U.  S.  490 145 

Thorington    V.    Smith,    8    Wall.    1 70,     77 

Thormann  V.  Frame,  176  U.  S.  350 140 

Thurlow   v.    Massachusetts,    5    How.    504 54,    114,  115 

Tierman  V.  Rinker,  102  U.  S.  123 116 

Tinsley  v.   Anderson,   171    U.    S.    101 137 

Tomlinson  v.  Branch,  15  Wall.  460 129 

Tomlinson  V.  Jessup,  15  Wall.  454 129 

Tonawanda   v.   Lyon,    181    U.    S.    389 145 

Trade-mark  Cases,  100  U.  S.  82 116,  121 

Travellers'  Ins.  Co.  v.  Connecticut,   185  U.  S.  364 140,  172 

Trial  of  Regicides,  J.  Kel.   13 89 

Tullis  v.  Lake  Erie,  etc.,   R.   Co.,    175   U.   S.   348 242 

Tullock    v.    Mulvane,    184    U.    S.    497 137 

Turner   v.   Maryland,    107    U.    S.    38 116,132 

Turpin    v.    Burgess,    117    U.    S.    504 126,  133 

Twin  City  Bank  v.  Nebeker,  167  U.  S.  196 113,  114 

Twitchell    v.    Pennsylvania,    7    Wall.    321 144,  146 

Tyler  v.   Defrees,    11    Wall.   331 122 

Union  Pac.   R.   Co.  v.   Peniston,   18  Wall.    5 115 

U.  S.  v.  Amedy,  11  Wheat.  392 139 

U.  S.  v.  Arjona,  120  U.  S.  479. 122 

U.   S.  v.  Arredondo,  6  Pet.  691 135 

U.  S.  v.  Ballin,  144  U.  S.  1 114 


320  TABLE  OF  CASES 


PAGE 

U.  S.  V.  Baltimore,  etc.,  R.  Co.,  17  Wall.  322 114 

U.  S.  17.  Bellingham  Bay  Boom  Co.,  176  U.  S.  211 118 

U.  S.  v.  Bevans,  3  Wheat.  336 123,  135 

U.  S.  v.  Bollman,  4  Cranch  127 80 

U.  S.  v.  Boyd,  83  Fed.  Rep.  547 52,  53 

U.  S.  v.  Burlington,  etc.,  Ferry  Co.,  21  Fed.  Rep.  340 123 

U.  S.  v.  Burr,  25  Fed.  Gas.  No.  14,  693 77,  78,  79,  85,  89,  91 

U.  S.  v.  Cook,  17  Wall.  168 146 

U.  S.  v.  Coolidge,  1  Wheat.  415 146 

U.  S.  v.  Coombs,  12  Pet.  72 115 

U.  S.  v.  Coxe,  18  How.  (U.  S.)  100 22,  25 

U.  S.  v.  Cruikshank,  92  U.  S.  542. . . 

2,  142,  143,  146,  199,  200,  211,  216,  217,  258 

U.  S.  v.  DeWalt,  128  U.  S.  393 144 

U.  S.  v.  Dewitt,  9  Wall.  41 124 

U.  S.  v.  Duell,  172  U.  S.  576 121 

U.  S.  v.  Dunnington,  146  U.  S.  338 139 

U.  S.  V.  E.  C.  Knight  Co.,  156  U.  S.  1 118 

U.  S.  V.  Fox,  94  U.  S.  315 124,  148 

U.  S.  v.  Fries,  3  Dall.  (Pa.)  515,  9  Fed.  Cas.  No.  5,126 78,  79 

U.  S.  V.  Furlong,  5  Wheat.  184 122 

U.  S.  v.  43  Gallons  Whiskey,  93  U.  S.  188 116 

U.  S.  v.  Gratiot,  14  Pet.  526 22,  25 

U.  S.  v.  Great  Falls  Mfg.  Co.,  112  U.  S.  645 144 

U.  S.  v.  Greathouse,  2  Abb.  364 68,  76,  78,  79,  86,  88 

U.  S.  v.  Greiner,  4  Phila,  (Pa.)  396,  18  Leg.  Int.  (Pa.)  149, 

26  Fed.  Cas.  No.  15,262 68,  75,  78,  85,  88 

U.  S.  v.  Grottkau,  30  Fed.  Rep.  672 60 

U.  S.  V.  G'uthrie,  17  How.  284 135 

U.  S.  v.  Hadley,  99  Fed.  Rep.  437 52 

U.  S.  V.  Hamilton,  3  Dall.  17 125 

U.  S.  V.  Hanway,  2  Wall.  Jr.  (C.  C.)  139 76,  77,  78,  83,  86 

U.  S.  V.  Harris,  106  U.  S.  640 201,  205,  258 

U.  S.  v.  Higgins,  103  Fed.  Rep.  348 52 

U.  S.  v.  Higgins,  110  Fed.  Rep.  609 52 

U.  S.  V.  Holliday,  3  Wall.  407 115 

U.  S.  v.  Hoxie,  1  Paine  265 76,  77,  78,  80,  87,  138 

U.  S.  V.  Hudson,  7  Cranch  32 135 

U.  S.  v.  Insurgents,  2  Dall.  335  75,  76,  138 

U.  S.  v.  Joint  Traffic  Assoc.,  171  U.  S.  505 145 

U.  S.  v.  Jones,  109  U.  S.  513 144 

U.  S.  v.  Kagama,  118  U.  S.  375 117 

U.  S.  v.  Kellar,  13  Fed.  Rep.  82,  11  Biss.  314 64 

U.  S.  v.  Kopp,  110  Fed.  Rep.  160 52 

U.  S.  v.  La  Vengeance,  3  Dall.  297 135,  140 


TABLE  OF  CASES  321 


PAGE 

U.   S.  V.  Lehman,  39   Fed.   Rep.  49 56 

U.  S.  v.  Lynah,  188  U.  S.  445 119,  145 

U.   S.   v.   Marigold,   9  How.   560 115,  120 

U.  S.  v.  McClellan,  127  Fed.  Rep.  971 192 

U.  S.  v.  Memphis,  97  U.  S.  284 130 

TL    S.    i?.    Mills,    7    Pet.    142 146 

U.   S.   v.  Mitchell,  2  Dall.   348 75,   76,  138 

U.  S.  v.  More,  3  Cranch  159 135 

U.  S.  v.  Morris,  125  Fed.  Rep.  325 4 

U.  S.  v.  Nelson,  29  Fed.  Rep.  204,  30  Fed.  Rep.  115 48 

U.  S.  V.  Norsch,  42  Fed.  Rep.  417 60 

U.  S.  v.  North  Carolina,  136  U.  S.  211 131 

U.  S.  v.  Norton,  1  U.  S.  569 114 

U.    S.   v.   Ortega,    11    Wheat.   467 135 

U.   S.  v.  Osborne,  6  Sawy.  406 52 

U.  S.  V.  Palmer,  3  Wheat.  610 122 

U.  S.  v.  Perez,  9  Wheat.  579 144 

U.  S.  v.  Peters,  5  Cranch  115 121 

a.  S.  v.  Power,  14  Blatchf.  223. 56 

U.   S.   V.  Pryor,   3    Wash.   234 76,   83,   89,     90 

U.  S.  v.  Rauscher,  119  U.  S.  407 176 

U.  S.  v.  Realty  Co.,  163  U.  S.  427 115 

U.  S.  v.  Reese,  92  U.  8.  214 200,  215,  258 

U.    S.   v.   Rice,   4   Wheat.    246 70 

U.  S.  v.  Ritchie,  17  How.  525 121 

U.  S.  v.  Rhodes,  1  Abb.  28,  27  Fed.  Cas.  No.  16,151 21,  52,  123 

U.  S.  v.  Rogers,  4  How.  567 22,  25,     53 

U.  S.  v.  Singer,  15  Wall.  Ill 114 

U.    S.    v.    Smith,    5    Wheat.    153 122 

U.  S.  v.  Texas,  143  U.  S.  621 136 

U.  S.  v.  Thoman,  156  U.  S.  353 131 

U.  S.  v.  Tract  of  Land,  1  Woods  475 76 

U.  S.  v.  Union  Pac.  R.  Co.,  98  U.  S.  569 121,  136 

U.   S.   V.   Vigol,   2   Dall.    346 86,     89 

U.  S.  v.  Villato,  2  Dall.    (Pa.)    370 54,     76 

U.   S.   v.   Waddell,    112   U.   S.   76 216 

U.  S.  v.  Ward,  42  Fed,  Rep.   320 52 

U.   S.  v.  Weil,  29  Ct.  01.  540 114 

U.  S.  v.  Williams,  194  U.  S.  279 189,  245,  268 

U.    S.   V.    Wiltberger,    5    Wheat.    76 74,    76,  122 

U.  S.  v.  Wong  Kim  Ark,  169  U.  S.  649 

20,  32,  33,  51,  54,   193,  197,  264 

U.   S.   v.   Zucker,    161   U.    S.   475 146 

U.  8.  Bank  v.  Deveaux,  5  Cranch  61 135,   140,  167 

Utter  v.  Franklin,   172  U.   S.   416 141 


322  TABLE  OF  CASES 


PAGE 

Van  Allen  v.  Assessors,  3  Wall.  573 114 

Van  Brocklin  v.  Tennessee,  117  U.   S.   151 115,  124 

Vance  v.  Vance,   103  U.  S.  514 130 

Vance  v.  W.  A.  Vandercook  Co.,   170  U.   S.   438 118,  140 

Vannevar  v.  Bryant,  21  Wall.  41 136 

Vaux  v.  Nesbit,  1  McQprd  Eq.   (S.  Car.)   352 60 

Veazie  v.   Moor,    14   How.    568 115 

Veazie  Bank  v.  Fenno,  8  Wall.  533 112,  114,  126 

Vicksburg  v.  Tobin,  100  U.  S.  430 133 

Vicksburg  Water  Works  Co.  v.  Vicksburg,   185  U.   S.   65 132 

Vidal  v.  Philadelphia,  2  How.  127 142,  185 

Vincennes  Univ.  v.  Indiana,  14  How.  268 128 

Virginia  V.  Rives,  100  U.  S.  313 199,  204 

Virginia  t?.  Tennessee,   148  U.   S.   503 133,  134 

Virginia   v.    West   Virginia,    11    Wall.   39 136 

Voight    v.    Wright,    141    U.    S.    62 117 

Von   Hoffman   v.    Quincy,   4    Wall.    535 129,167 

Wabash,  etc.,  Canal  Co.  v.  Beers,  2  Black  448 128 

Wabash,  etc.,  R.  Co.  v.  Illinois,   118  U.  S.  557 117 

Wabash  R.   Co.   v.  Defiance,   167  U.   S.   88 131 

Wabash  R.  Co.  V.  Flannigan,  192  U.  S.  29 140 

Wabash  R.  Co.  v.  Pearce,  192  U.  S.  179 138 

Waggoner  v.  Flack,  188  U.  S.  595 132 

Walker  v.  New  Mexico,  etc.,  R.  Co.,  165  U.  S.  593 147 

Walker  v.  Sauvinet,  92  U.  S.  90 236 

Walker  v.  Whitehead,   16  Wall.  314 129 

Wallace  V.  Harmstad,  44  Pa.   St.   501 69 

Wallach   v.   Van   Riswick,   92   U.    S.    202 76,  139 

Walla  Walla  v.  Walla  Walla  Water  Co.,   172  U.  S.   1....131,  137 

Walling  V.   Michigan,    116    U.    S.   446 116,    157,  170 

Walsh  v.  Columbus,  etc.,  R.  Co.,  176  U.  S.  469 132 

Ward   v.   Maryland,    12   Wall.    418 99,    140,    170,  171 

Waring  v.   Clarke,   5   How.   441 135 

Waring    v.    Mobile,    8    Wall.    110 115,  132 

Washington,  etc.,  Turnpike  Co.  v.  Maryland,  3  Wall.  210 129 

Washington  Univ.  V.  Rouse,  8  Wall.  439 129 

Waters-Pierce  Oil  Co.  v.  Texas,  177  U.  S.  28 118,  242 

Watson  v.  Mercer,  8  Pet.  88 125,  127 

Weber  v.   Rogan,    188  U.   S.    10 132 

Webster  v.  Reid,  11  How.  437 146 

Wedding  v.  Meyler,  192  U.  S.  573 140 

Welton  V.  Missouri,   91   U.    S.   275 116 

West  v.  Louisiana,  194  U.  S.  263 235 

Westmoreland  v.  U.  S.,  155  U.  S.  545 53 

Weston  v.  Charleston,  2  Pet.  449 114 


TABLE  OF  CASES  323 


West  River  Bridge  Co.  v.  Dix,  6  How.  507 128,  144 

Western  Union  Tel.  Co.  v.  Alabama  State  Board  of  Assessment, 

132  U.  S.  472 117 

Western  Union  Tel.  Co.  v.  Ann  Arbor  R.  Co.,  178  U.  S.  239 137 

Western  Union  Tel.  Co.  v.  Atty.-Gen.,  125  U.  S.  530 117 

Western  Union  Tel.  Co.  v.  James,  162  U.  S.  650 118 

Western  Union  Tel.  Co.  v.  New  Hope,  187  U.  S.  419 119 

Western  Union  Tel.  Co.  v.  Pendleton,  122  U.  S.  347 117,  148 

Western  Union  Tel.  Co.  V.  Taggart,  163  U.  S.  1 118 

Western  Union  Tel.  Co.  v.  Texas,  105  U.  S.  460 116 

West  Wisconsin  R.  Co.  v.  Trempealeau  County,  93  U.  S.  595 129 

Wharton  v.  Wise,  153  U.  S.  155 106,  133 

Wheaton  v.  Peters,  8  Pet.  591 121 

Wheeler  v.  Jackson,  137  U.  S.  245 131 

Wheeling,  etc.,  Bridge  Co.  v.  Wheeling  Bridge  Co.,  138  U.  S. 

287 131 

Wheeling,  etc.,  Transp.  Co.,  V.  Wheeling,  99  U.  S.  273 116,  133 

White  v.  Clements,  39  Ga.  232 3 

White  v.  Hart,  13  Wall.  646 29,  30,  129,  192,  193,  228 

Whitehead  v.  Shattuck,  138  U.  S.  146 147 

White's  Bank  v.  Smith,  7  Wall.  646 115 

Whitman  v.  Oxford  Nat.  Bank,  176  U.  S.  559 137 

Wiggins  Ferry  Co.  v.  East  St.  Louis,  107  U.  S.  365 116,  133 

Wight  v.  Davidson,  181  U.  S.  371 124,  145 

Wiley  v.  Sinkler,  179  U.  S.  58 Ill,  137,  216,  219,  258 

Wilkes  County  v.  Coler,  180  U.  S.  506 114,  140 

Willamette  Iron  Bridge  Co.  v.  Hatch,  125  U.  S.  1 117 

Willard  v.  Presbury,  14  Wall.  676 124 

Williams  v.  Bruffy,  96  U.  S.  176 129 

Williams  v.  Eggleston,  170  U.  S.  304 131 

Williams  v.  Fears,  179  U.  S.  270 118,  126,  14Q 

Williams  v.  Mississippi,  170  U.  S.  213 185,  216,  219,  237,  255 

Williams  v.  The  Lizzie  Henderson,  29  Fed.  Gas.  No.  17,  726a 127 

Williamson  v.  New  Jersey,  130  U.  S.  189 130 

Willson  v.  Black  Bird  Creek  Marsh  Co.,  2  Pet.  245 115 

Wilmington,  etc.,  R.  Co.  v.  Alsbrook,  146  U.  S.  279 131 

Wilmington,  etc.,  R.  Co.  V.  King,  91  U.  S.  3 129 

Wilmington,  etc.,  R.  Co.  v.  Reid,  13  Wall.  264 129 

Wilson  v.  Eureka  City,  173  U.  S.  32 214,  244 

Wilson  v.  Iseminger,  185  U.  S.  55 132 

Wilson  17.  Lambert,  168  U.  S.  611 145 

Wilson  v.  McNamee,  102  U.  S.  572 116 

Windsor  v.  McVeigh,  93  U.  S.  274 76 

Wisconsin  Cent.  R.  Co.  v.  Price  County,  133  U.  S.  496 25 

Wisconsin,  etc.,  R.  Co.  v.  Jacobson,  179  U.  S.  388 118 

Wisconsin,  etc.,  R.  Co.  v.  Powers,  191  U.  S.  379 132 


324  TABLE  OF  CASES 


PAGE 

Withers  v.  Buckley,  20  How.  84 144,  146 

Wolff  v.  New  Orleans,  103  U.  S.  358 130 

Wong  Wing  v.  U.  S.,  163  U.  S.  228 145,  146 

Woodruff  v.  Mississippi,   162  U.   S.   291 131,  137 

Woodruff  v.  Parham,  8  Wall.  123 114,  132,  140 

Woodruff  v.  Trapnall,   10  How.   190 128 

Woolen  i?.  Banker,  2  Flipp.  33,  30  Fed.  Gas.  No.  18,030 121 

Worcester  v.  Georgia,  6  Pet.  515 115 

Wright  v.  Nagle,  101  U.  S.  791 130 

W.  W.  Cargill  Co.  v.  Minnesota,  180  U.  S.  452 118,  140,  214 

Yick  Wo  v.  Hopkins,  118  U.  S.  356 208,  211,  255,  256 


INDEX. 


Aliens - 

See  NATURALIZATION.  PAGE 

Alien  friends,  privileges  and  disabilities  in  general 268 

Chinese  immigration    275 

Definition     » 268 

Enemies,  privileges  and  disabilities  in  general 272 

Exclusion  of 267 

Jurisdiction  and  powers  of  courts 274 

Mineral   lands    271 

Personal  property   271 

Real  property,  rights  as  to . 270 

State  control  of    249 

Statutory  modifications  of  common-law  doctrine 271 

Statutory  provisions  as  to  alien  enemies 273 

Taxation    272 

Territories,  right  to  hold  real  estate  in 274 

Transactions  with  hostile  nation  or  its  citizens 273 

Treaties    272 

Voting  by   66 

Allegiance  — 

See  TREASON. 

Controversy  as  to  paramount  allegiance 70 

Definition  and  tests  of 68 

Doctrine  established  by  Civil  War 71 

Dual  allegiance    70 

Effect  of  change  of  government  69 

Formal  compact  not  necessary 69 

Kinds  of    69 

Oath  of  paramount  allegiance 72 

Paramount   allegiance    13 

Amendments  — 

See  FOURTEENTH  AMENDMENT. 
THIRTEENTH  AMENDMENT. 

Eleventh  Amendment    149 

First  ten  amendments 149 

Last  three  amendments   150 

Powers  affected  by   148 

Twelfth  Amendment  149 

American  citizenship  — 

Origin  and  kinds 4 

325 


326  INDEX 


Articles  of  Confederation—  PAGE 

Citizenship   under    8 

Guarantees  to  individuals  under   106 

New  citizenship  proposed  —  The  Federalist 10 

Bills  of  attainder  — 

Nature  of   163 

Bills  of  rights  — 

Virginia  bill  of  rights 100 

Birth  — 

Citizens  by    51 

Black  persons  — 

See  COLORED  POPULATION. 

British  citizenship  — 

Of   colonists    5 

Brown,  John  — 

See  JOHN  BROWN'S  RAID. 

Business  pursuits  — 

Regulation  of  211 

Capital  punishment  — 

Form  of  238 

Cattle  — 

Infected  cattle,  guarding  against  introduction  of 213 

Children  — 

Citizenship   of    65 

Foreign-born  children  of  citizens 62 

Chinese  — 

Immigration  of    275 

Churches  — 

See  RELIGION. 

Citizenship  — 

See  COLONIAL  RULE. 

NATIONAL  CITIZENSHIP. 
NORTHWEST  TERRITORY. 
STATE  CITIZENSHIP. 
TERRITORIES. 

Civil  rights  — 

Civil  rights  bill   199 

Discrimination  against  negroes  on  juries 203 

Enforcement  act  198 

Equal  accommodation  for  the  races 193 

Legislation  against  state  action  alone 203 

Thirteenth   amendment    193 


INDEX  327 


Civil  war—  PAGE 

Antagonism  between  sections  27 

Controversy  as  to  paramount  allegiance 70 

Doctrine  established  by   71 

Dual  allegiance    70 

Interests  and  views  of  North  and  South 26 

Secession  and  emancipation   28 

Status  of  seceding  states  —  Texas  v.  White 181 

Glass  legislation  — 

See  CIVIL  RIGHTS. 

COLORED  POPULATION. 

DISCRIMINATION. 

FOURTEENTH  AMENDMENT. 

JURIES. 

TAXATION. 

Colonial  rule  — 

British    citizenship   of    colonists 5 

Citizenship   recognized  by  Great  Britain 7 

Citizenship  under    4 

Continental    Congress,  power   of 14 

League  among  colonists    7 

Liberty  in  the  colonies 93 

Colored  population  — 
See  SLAVERY. 
SUFFRAGE. 

Change  in  status  of  negro 30 

Discrimination  against  negroes  on  juries 203 

Dred  Scott  case   27,  171 

Enforcement   act    198 

Equal  accommodations  for  races 193 

Equal  protection  of  the  law 254 

Interests  and  views  of  North  and  South 26 

Juries,  exclusion  of  negroes  from 240 

Negro  suffrage,  reasons  for  indifference  as  to 222 

Racial  representation  on  juries,  right  to 237 

Representation  in  Congress,  white  and  black  inhabitants 24 

Secession  and  emancipation    28 

Separation  of  races  in  public  places,  power  of  states 245 

Suffrage  under  Fourteenth  Amendment 215 

Commerce  — 

Earliest   and   latest   decisions 155 

Early  interference  with  commerce  by  states 154 

Exclusiveness  of  federal  power 155 

Fish  and  game  laws  158 

Opposing  theories  of  construction    157 


328  INDEX 


PAGE 

Separation  of  races  in  public  conveyances 245 

Supremacy  in  case  of  conflict 156 

Test  of  federal  legislation   156 

Test  of  state  legislation   156 

What  state  rights  unaffected  156 

Congress  — 

Attitude  of  House  of  Representatives  on  suffrage 221 

Importance  of  power  to  reduce  representation 230 

Improbability  of  actual  reduction  of  representation 232 

Legislative  privilege,  history  and  nature  of 153- 

Power  to  reduce  representation  in,  not  repealed  by  Fifteenth 

Amendment     231 

Reduction  of  representation  of  states  in  Congress 223 

Representation  in,  white  and  black  inhabitants 24 

Right  to  vote  for  Congressmen 217 

Treason,  power  of  Congress  as  to 78 

Constitution  — 

See  FOURTEENTH  AMENDMENT. 
THIRTEENTH  AMENDMENT. 
Virginia  bill   of  rights    104 

Continental  Congress  — 

Power  of 14 

Corporations  — 

As  citizens    167 

Control  and  regulation  of,  power  of  states 241 

Foreign  corporations,  legislation  affecting 168 

Taxing  corporate  shares    172 

Declaration  of  Independence  — 

Effect  of    6 

Interim  between  independence  and  Constitution 12 

Principles  enunciated  by    104 

Virginia  bill  of  rights 104 

De  facto  government  — 

Duty  to   77 

Desertion  — 

Forfeiture  of  citizenship  274 

Discrimination  — 

Equal  protection  of  the  law 254 

Rights  of  citizens  of  each  state  to   all  privileges  and  im- 
munities of  citizens  in  several  states 167 

Taxation  by  states   246 

Dorr's   rebellion  — 

Republican  form  of  government   178 


INDEX  329 


Dred  Scott  decision—  PAGE 

Account  of 27 

Due  process  of  law  — 

Claims  almost  invariably  rejected 252 

Definition  of   250 

General  principles  established 252 

History  of  provisos    249 

Litigation  under  Fifth  and  Fourteenth  Amendments 251 

Dutch  — 

See  HOLLAND. 

Election  — 

See  SUFFRAGE. 

Enforcement  act  — 

Early  cases  under  200 

Under  Fourteenth  Amendment   198 

England  — 

American  charities,  hospitals  and  prisons 95 

American  elections  and  public  prosecutions 95 

American  system  of  land  tenures 95 

American  tenets  not  derived  from  England 94 

Educational  system  in  America 96 

Religious  toleration  in  America 95 

Source  of  American  plan  of  government  and  rights  of  citi- 
zenship          93 

Equal  protection  of  the  law  — 

Business  regulations  254 

Negroes  excluded  from  juries 254 

Racial  discriminations 255 

Railroads,  regulation  of 56 

Relation  to  due  process    254 

Rights  settled  by  Fourteenth  Amendment 256 

Territorial  and  municipal  arrangements 254 

Expatriation  — 

Confused  citizenship   266 

Doctrine   sustained    264 

Fundamental  American   doctrine    263 

Power  of  Congress,  limitation  of  protection 266 

Proof  of 265 

Statutory   provisions    263 

Who  may  renounce  citizenship 265 

Ex  post  facto  laws  — 

Nature  of   ...  164 

Extradition  — 

Abduction  of  defendant  from  state..  .  176 


330  INDEX 


PAGE 

Extradition  on  one  charge  and  trial  on  another 176 

Federal  guarantee  of   174 

Indictment,  sufficiency  of 177 

Federal  citizenship  — 

See  NATIONAL  CITIZENSHIP. 

Federalist  — 

New  citizenship  proposed   10 

Fifteenth  Amendment  — 

Causes  of  denial  comprehended 257 

Decisions  under 258 

Individual  acts  not  inhibited    257 

Interpretation  as  of  date  of  adoption 260 

Nature  of    257 

Relates  to  voting  exclusively 257 

Restriction  of  suffrage  generally 259 

State  constitutions,  effect  on 259 

Fish  and  game  — 

Discriminating  laws   173 

Food  — 

Inspection  of - 213 

Foreign  corporations  — 
See  CORPOBATIONS. 

Foreign  relations  — 

Protection  of  citizens  abroad 261 

Fourteenth  Amendment  — 

Aliens,  right  of  state  to  control 249 

Basic  principles  of  decisions 210 

Business  pursuits,  regulation  of 211 

Citizenship   under    31 

Civil   rights  bill    199 

Conduct   of   individuals   and   bodies   of   citizens   in   public 

places,  right  to  control   243 

Corporations,  power  of  state  to  regulate  and  control  busi- 
ness   of    241 

Due  process  of  law 249 

Early  view  as  to  scope 194 

Enactments  prolific  of  litigation  196 

Enforcement  act    198 

Equal  protection  of  the  law 254 

Functions  of  amendments  generally  709 

Grounds  of  relief 207 

Instruct! veness  of  cases  rejecting  claims 208 

Juries,  right  of  states  to  regulate  procedure 235 

Morality  and  decency,  right  to  require  citizens  to  observe. . .  244 


INDEX 


PAGE 

Old  and  new  principles  of  citizenship 196 

Particular  rights  established   208 

Professions,  regulation  of   215 

Proposal   and   adoption   of 31 

Provisions  directed  against  state  legislation 197 

Eesults  of  litigation    207 

Right  of  legislation  conferred   195 

Second  clause  197 

Separation  of  races  in  public  places,  power  of  states 245 

Slaughter-House    Cases    32 

State  procedure,  right  of  states  to  regulate 235 

Suffrage   215 

Taxation,  power  of  state  to  regulate 246 

United  States  v.  Wong  Kim  Ark 33 

Volume  of  decisions   construing 206 

Women's   rights,  regulation  of 214 

Freedom  of  tie  press  — 

General  considerations   189 

Injunction  or  action  for  damages 190 

Free  speech.  — - 

Limitations    188 

Right   of 188 

Fugitives  from  justice  — 
See  EXTRADITION. 

Government  — • 

Source  of  American  plan   93 

Guam  — 

No  special  provision  for 42 

Habeas  corpus  — 

Common  writ   161 

Federal  and  state  writs  161 

Form  of  writ   160 

Importance  of  right  to   159 

Origin,  history,  etc 162 

Rights  of  citizens    159 

Suspension     162 

Various  purposes  of 160 

Hawaii  — 

Acquisition   of    35 

Act  of  April  30,  1900 37 

Government  of   36 

Legislature   of    38 


332  INDEX 

Holland  —  PAGE 

Influence  of,  on  American  plan  of  government  and  rights  of 

citizenship     93 

Immigration  — 

Chinese  immigration    275 

Exclusion  of  aliens    267 

Immunities  — 

See  RIGHTS,  PRIVILEGES,  AND  IMMUNITIES. 
Impairment  of  obligation  of  contracts  — 

See  OBLIGATION  OF  CONTRACTS. 
Independence  — 

See  DECLARATION  OF  INDEPENDENCE. 
Insular  possessions  — 

Citizenship   in 46 

Qualified    citizenship    in    territorial    and    acquired    posses- 
sions          34 

Source  of  power  to  acquire  and  govern 47 

Interstate  commerce  — 
See  COMMERCE. 

John  Brown's  Raid  — 

Offense  against  state   82 

Treason  against  both  nation  and  state  81 

Juries  — 

Discrimination  against  negroes  on  juries 203 

Equal  protection  of  the  law 254 

Federal  courts,  rights  to  juries  in 235 

Negroes,  exclusion  of 240 

Qualification  of  jurors  238 

Racial  representation  on  juries,  right  to 237 

State  courts,  right  to  juries  in 235 

State  procedure,  right  of  states  to  regulate 235 

Jurors  — 

Number  of  jurors   238 

Laundries  — 

Regulation  of   , 211 

Legislature  — 

See  CONGRESS. 

Liberty  — 

See  RIGHTS,  PRIVILEGES,  AND  IMMUNITIES. 

Licenses  — 

Equal  protection  of  the  law 256 

Practice  of  profession,  regulation  of 215 

Vendors'  licenses 213 


INDEX  333 


Limitations  —  PAGE 

Nonresident   plaintiffs    172 

Liquor  traffic  — 

Regulation  of  , 212 

Marriage  — 

Citizenship  by    63 

Statutes  discriminating  as  to  marital  rights 171 

Morality  and  decency  — 

Requiring  citizens  to  observe ..„ 244 

National  citizenship  — 
See  ALLEGIANCE. 
EXPATRIATION. 
PATRIOTISM. 
STATE  CITIZENSHIP. 
TREASON. 

Acquisition   of    51 

Beginning    of    4 11 

Citizenship  in  United  States  17 

Dred  Scott  decision    27 

Dual   treason    80 

Foreign-born  children  of  citizens 62 

Fourteenth  Amendment,  rights  of  citizens  under 194 

Guarantees  to  individuals  under  Federal  Constitution 106 

Interim  between  independence  and  Constitution 12 

Liberty  in  England  and  in  United  States 93 

Negro,  changed  status  of 30 

New  Constitution,  who  were  citizens  under 20 

New  government  and  new  class  of  citizens 18 

Obligations  and  duties  of  citizens  to  nation 68 

Reference  to  citizenship  in  the  Constitution 19 

Representation  in  Congress,  white  and  black  inhabitants. ...  24 

Slavery   under  the  Constitution 25 

Source  of  American  plan  of  government  and  rights  of  citi- 
zenship       93 

State  and  national  citizenship  not  necessarily  coexistent 66 

Territories,  government  of  —  inhabitants  as  citizens 22 

Thirteenth  Amendment    29 

Naturalization  — 

Act  of   1813    55 

Children,  provisions   concerning    60 

Declaration  of  intention    55 

Discharged    soldiers    55 

Oath    58 

Persons  exempt  from  preliminary  declaration 57 

Renunciation  of  titles   60 


334  INDEX 


PAGE 

Residence  and  character   59 

Seamen 55 

Who  may  be  naturalized  53 

Nature  of   citizenship    1 

Negroes  — 

See  COLORED  POPULATION. 

Northwest  Territory  — 

Citizenship    of    13 

Ordinance  a  compact   15 

Political  rights  and  citizenship  under  Ordinance 16 

Power  of  Continental  Congress 14 

Settlement  of   14 

Obligation  of  contracts  — 

Change  of  remedy   166 

General  considerations   165 

Leading  case,  Charles  River  Bridge  v.  Warren  Bridge 166 

Volume  of  litigation    166 

Oil  wells  — 

Regulation  of  flow   214 

Ordinance    for    the    Government    of    the    Northwest    Ter- 
ritory — 

See  NORTHWEST  TERRITORY. 

Origin  of  citizenship    1 

Patriotism  — 

Characteristics    of     73 

Philippine  Islands  — 

Act  of  March  2,   1900 42 

Act  of  July   1,    1902 44 

Attitude  of  United  States  Supreme  Court 46 

Bureau  of  Insular  Affairs 45 

Citizenship  in  insular  possessions   46 

Citizenship  in  Philippine  Islands    44 

Elections  and  popular  assembly 45 

Government   generally    45 

Government  under  Commission   43 

Rights  of  the  Philippines    44 

Source  of  power  to  acquire  and  govern 47 

Police  powers  — 

See  FOURTEENTH  AMENDMENT. 
Conduct    of   individuals   and   bodies   of   citizens  in   public 

places,  right  to  control    243 

Regulation  of  ordinary  business  pursuits  by  states 211 


INDEX 


335 


Polygamy  —  PAGE 

Laws  against   244 

Porto  Rico  — 

Act  of  April  12,  1900 , 39 

Legislative  and  judicial  power 40 

Nature  of  government   41 

President  — 

Protection  of  citizens  abroad  261 

Press  •— 

See  FREEDOM  OF  THE  PRESS. 

Privileges  — 

See  RIGHTS,  PRIVILEGES,  AND  IMMUNITIES. 

Procedure  — 

Crime,  power  of  state  to  deal  with 240 

Form  of  action,  right  to  particular 240 

Interference  with  state  procedure  not  justified 236 

Judicial  statements  of  state  rights  of  procedure 239 

Marriage  and  divorce 240 

Punishment  of  habitual  criminals 238 

Review  by  federal  courts,  extent  of 239 

State  procedure,  right  of  states  to  regulate 235 

Professions  — 

Regulation   of  practice    215 

Protection  — 

Citizens  abroad   261 

Qualified  citizenship  — 

Territorial  and  acquired  possessions 34 

Railroads  — 

Equal  protection  of  the  law 256 

Religions  — 

Church  property    186 

Free  exercise  of 185 

Offenses  against  morality  and  decency 187 

Sectarian  control  of  government  hospital 188 

Renouncement  of  citizenship  — 
See  EXPATRIATION. 

Republican  form  of  government  — 

Dorr's  rebellion 178 

Guarantee  of    178 

Secession  of  Texas    180 

Residence  — 

Affecting  state  citizenship   66 


336  INDEX 


Bights,  privileges  and  immunities  —  PAGE 

Amendments,  what  powers  affected  by 148 

Apportionment  of  representation  and  taxation 112 

Appropriations  for  war  purposes 122 

Articles  of  Confederation,  guarantees  to  individuals  under ...  106 

Assembly  and  petition  142 

Attainder 138 

Attainder  and  ex  post  facto  laws 125 

Bail,  fines  and  punishments  147 

Bankruptcy    119 

Bearing  arms  143 

Bills  of  credit  127 

Cattle  laws  172 

Census      112 

Classification  of  rights   Ill 

Coinage  of   money    127 

Coinage,  weights  and  measures 120 

Compensation  for  property  taken  145 

Construction  of  constitutional  amendments 108 

Decisions,  necessity  of  studying 152 

Direct  taxes   125 

Due  process  of  law 145 

Election  of  President  and  Vice-President. 134 

Election  of  representatives  in  Congress Ill 

Eligibility  of  representatives  in  Congress Ill 

Equality  in  the  Senate   142 

Enforcement  left  to  Congress  and  executive 184 

Enumeration  of  rights,  effect  of 147 

Executive  sanction  of  laws 114 

Export   duties    126 

Extension  of  guarantees  under  Constitution 106 

Extradition    141 

Federal  Constitution    106 

Federal  courts    121 

Federal  courts,  suing  in 134 

Fish  and  game  laws  173 

Former  jeopardy  145 

Fourteenth  Amendment,  rights  of  citizens  under 194 

Freedom  of  religion,  speech  and  press 142 

Full  faith  and  credit 139 

Government  territory,  authority  over 123 

Grand   jury    144 

Habeas  corpus 124 

Impeachments     113 

Imposts,  etc.,  by  states  132 

Inspection  of  food,  liquor  traffic 174 


INDEX  337 


PAGE 

International  and  interstate  commerce 115 

Interpretations  by  Supreme  Court 151 

Juries  in  civil  cases  146 

Jury  trial    134 

Legal    tender    127 

Liberty  in  England  and  in  the  United  States 93 

Liberty  in  the  colonies   93 

Limitation  of  actions  172 

Limitations   of  federal  power 107 

Militia,  use  of 123 

Naturalization    119 

Navy    123 

Obligation  of  contracts    127 

Offenses  against  law  of  nations 121 

Of  the  citizen    92 

Origin  of  92 

Patents  and  copyrights   121 

Postal    system    120 

Presidency,  eligibility  to  134 

Privileges  of  members  of  Congress 113 

Protection  of  states 141 

Quartering  troops    143 

Religion,  free  exercise  of 185 

Republican  form  of  government 141 

Reservation  of  powers  147 

Reservation  of  undelegated  powers  151 

Retrial  on   facts    147 

Revenue  bills    113 

Rights  in  states  before  union 150 

Scope  of  federal  powers 150 

Searches  and  seizures    143 

Search  warrants 143 

Self-incrimination    145 

Senators,  eligibility  as    1 13 

Source  of  American  plan  of  government 93 

Source  of  American  rights  of  citizenship 93 

State  bills  of  rights    100 

State  citizens  entitled  to  all  privileges  and  immunities  of 

citizens  of  several  states  167 

State  citizenship,  rights  under   98 

State  ports   126 

Statutes  assailed  on  double  grounds 169 

Titles  of  nobility   126,  127 

Tonnage  duties,  etc.,  by  states 133 

Treason    138 


338 


PAGE 

Treaties  by  states  126 

Trial,  speedy  and  public  145 

Uniformity  of  duties,  etc 114 

Universal  privileges    140 

Venue  in  criminal  cases   134 

Vice-presidency,  eligibility  to  134 

Virginia  bill  of  rights   100 

War  and  letters  of  marque 122 

Schools  — 

Separation  of  races 246 

Secession  — 

See  dviL  WAR. 

Slaughter-House    Cases  — 

Citizenship  established  by 32 

Slaughter  houses  — 

Regulation   of    211 

Slavery  — 

Dred   Scott  case    171 

Guarantee  that  persons  held  to  service  escaping  shall  be 

delivered  up    178 

Thirteenth  Amendment 192 

Under  the  Constitution   25 

Spanish  possessions  — 

Colonization  of 34 

Treaties   with   Spain    35 

Speech  — 

See  FREE  SPEECH. 

State  citizenship  — 

See  NATIONAL  CITIZENSHIP. 

Acquisition  by   birth    61 

Bills   of   rights    100 

Fourteenth   Amendment  on    62 

National  citizenship  not  necessarily  coexistent  with 66 

No   enumeration   of   rights 98 

Obligations  and  duties  of  citizen  to  state 68 

On  organization  of  United  States 11 

Origin  and  nature  of  6 

Residence  affecting    66 

Right  of  citizens  to  all  privileges  and  immunities  of  citi- 
zens in  several  states 167 

Rights  of  citizens  of  states 98 

Treason  against  states 79 

State  constitutions  — 

After  United  States  independence    6 


INDEX  339 


PAGE 

Status  of  the  citizen  2 

Subjects  — 

Citizens  contrasted  with  4 

Suffrage  — 

Aliens,  state  control  of    249 

Congressmen,  right  to  vote  for 217 

Constitutionality  of  reconstruction  acts 227 

Court's  lack  of  power  to  relieve 220 

Examples   of  valid   enactments 220 

Fifteenth   Amendment    257 

House  of  Representatives,  attitude  of 221 

Importance  of  power  to  reduce  representation 230 

Jurisdiction  of  federal  courts 219 

Negro  suffrage,  reasons  for  indifference  as  to 222 

Political   questions    220 

Possibility  of  wrongful  administration  of  laws 219 

Power  of  states  to  restrict   219 

Presidential  electors,  voting  for 218 

Reduction  of  representation  of  states  in  Congress 223 

Restriction  of  suffrage  generally    259 

Right  to  abridge  restricted  only  by  Fifteenth  Amendment. . .  226 

Right  to  vote  derived  from  states 215 

Theory  of  universal  suffrage 229 

Sunday  — 

Business  on,  prohibition  of 213 

Taxation  — 

Aliens     272 

Class  legislation,  local  assessments 248 

Corporate  shares,  taxing  of 172 

Decisions  as  to    153 

Limitations  on  taxing  power 152 

Occupation  taxes,  discrimination  in 169 

Regulation  by  states,  power  of  states 246 

Territories  — 

Government  of  22 

Inhabitants  as  citizens    22 

Qualified    citizenship    in    territorial    and    acquired    posses- 
sions   24 

Thirteenth  Amendment  — 

Equal   accommodations  for  races 193 

Proposal  and  adoption  of 29 

Ratification  of   29 

Slavery  abolished    192 


340  INDEX 


Treason  —  PAGE 

Adhering  to  enemies  87 

Against  nation  and  state  compared 80 

De  facto  government,  duty  to 77 

Definition  and  grades  of 74 

Dual  treason 80 

Elements  of  offense 83 

Enemies,  aid  and  comfort  to 88 

Enemies,  who  are   87 

Evidence  of  reputation    90 

Federal    statutes    75 

Force  necessary    85 

Intent  and  overt  act 83 

John  Brown's  raid  81 

Levying  war,  what  constitutes 85 

Misprision  of  treason 76 

Overt  act,  what  is   84 

Power  of  courts  78 

Principals,  all  participants  are  90 

Rioting  and  levying  war  distinguished 86 

State  constitutions  and  statutes  79 

Treaties  — 

Aliens,  status  of  272 

United  States  — 

See  NATIONAL  CITIZENSHIP. 

Voters  — 

See  SUFFRAGE. 

Voting  — 

Alien  voters    66 

War  — 

See  CIVIL  WAR. 
TREASON. 

Levying  war,  what  constitutes 85 

Rioting  and  levying  war  distinguished 86 

War  amendments  — 

See  FOURTEENTH  AMENDMENT. 
THIRTEENTH  AMENDMENT. 

Women  — 

Citizenship  by  marriage    63 

Nonresident  wives  of  citizens    64 

Women's  rights  — 

Regulation  of 214 


AN  INITIAL  FINE  OF  25  CENTS 


LD  21-100m-8,'34 


% 


YC  08°°' 


